About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance Of ... Law and IT.

Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

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Category Archives

July 13, 2005

July 06, 2005

July 03, 2005

June 27, 2005

Court Overturns Ninth Cir., Upholds FCC Ruling in Brand X Case

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Posted by Ernest Miller

via SCOTUS Blog:

In a 6-3 ruling, the Court decided that cable operators offering high-speed Internet access have no legal duty to open their service to customers of all Internet service providers.

In the cable case, the Court upheld the decision of the Federal Communications Commission that broadband cable moden companires arfe exempt from mandatory common-carfrier regulation. That, Thomas wrote, is a lawful interpretation of the Communications Act, and thus is due deference.

Will update when the decision is available.

Public Knowledge is first out of the gate with a statement from their president, Gigi Sohn:

The Court's decision today raises the question of whether Congress, in tackling its next revision of the Telecommunications Act, should act to ensure that communications, content, and applications are allowed to pass freely over the Internet's broadband pipes. We believe Congress should do so, because "net neutrality" is a worthy goal that not only will promote free speech and creativity on the Internet, but also will benefit those who provide broadband connectivity by making that connectivity more valuable.

Comments (0) + TrackBacks (0) | Category: Open Access | Telecomm

Where I'll Be Reading About Grokster and Brand X

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Posted by Ernest Miller

Where I'll be reading about the decision:

This post will be updated ...

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Open Access | Telecomm

June 24, 2005

Grokster + Brand X = Issues of Openness? It's All About the Distribution, Baby!

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Posted by Ernest Miller

Prof. Michael Madison points to the debate over Brand X that is starting on Picker MobBlog (MobBlawg LiftOff). [Btw, Picker calls his site MobBlog. I like Madison's MobBlawg better.] Michael agrees with one of the MobBlawggers that Brand X may ultimately be a more important decision than Grokster. Furthermore, Michael points to a Dec 2004 post of his that looks at the conceptual connections between the two: they both are means of regulating communication (On Grokster and Brand X). Abso-posi-lutely! It's all about the distribution man! It's freedom of the press, it's telecomm, it's copyright. It's Network Law. It's All About the Distribution, Stupid. It's Freedom of the Press, Stupid. We're going to need analytic tools that work similarly in all these areas of law and treat them as one whole system of regulating communication.

Anyway, for a very nice discussion of how to frame some of these issues, see Randy Picker's post, Framing Openness and the response from Phil Weiser here: Making Sense of Openness.

In response to, or perhaps, just going off on my own tangent I would like to bring in the traditional concept of common carriage as part of the openness conversation, as that is yet another way we've framed openness issues in the past.

For example, Picker makes an interesting comment:

I am comfortably in the camp of those who believe that an author should have some rights associated with her work and indeed don’t believe that even most of the copyright left favor eliminating all of the attributes associated with copyright.
Well, airlines are common carriers. But advocating common carriage for airlines doesn't necessarily mean that one wants to completely socialize airlines. I see the copyfight similarly.

Weiser notes:

Notably, in some cases, there will be alternative platforms (such as cell phones or video games), creating powerful incentives for some providers to voluntarily provide "open access" to their platform.
Heck, yes. But I'll note in reply that in the case of common carriage, we apply it despite the fact that there are many alternatives. There may be many airlines servicing a particular airport, some even duplicating routes, but we still regulate them as common carriers. Furthermore, airlines have competition from trains and buses. One might say "there are alternative platforms" for airlines, so why regulate them as common carriers? Yet, we do. Interesting, that.

Just some random thoughts on a beautiful Friday afternoon.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | Open Access | Telecomm

June 23, 2005

June 22, 2005

Listening to Radio On Your Cellphone

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Posted by Ernest Miller

BusinessWeek has an an interesting article about radio for your cellphone (Dial R for Radio on Your Cell).

Chances are radio services will be a hit with the 2 billion wireless subscribers worldwide. "Mobile phones are always with you," explains Nancy Beaton, a general manager at telco Sprint (FON), which became the first carrier with a commercial cell-phone radio service in December. "Because customers are familiar with how the phone works, adding radio can be very intuitive," says Beaton.

And many users want that addition. According to surveys conducted by America Online, a unit of Time Warner (TWX), more than half the respondents say they would listen to the radio on their phones. AOL is in talks with wireless service providers to offer its online radio stations on mobile phones within months.

Radio on phones is a good idea. I could see that it would be very useful. However, a couple of questions ... many related to my rant yesterday (Die Cellphone. Die! Die! Die!).

First, why the heck does AOL (or any other cellphone radio service) need to be in talks with wireless service providers? Why couldn't they simply be in talks with, you know, customers? The closed networks of the cellphone providers are really limiting competition and innovation (not to mention increasing the price).

Second, despite Miss Beaton's claim about ease of use, why the heck do we have to get the radio via a cellphone? Why not get the radio via an MP3 player? Why not let the MP3 player have basic connectivity for this purpose? A cellphone is great in some circumstances, but not necessarily all.

Radio service also could spark sales of other wireless content. "Since radio is how people discover new music, I'd look at radio as the trigger that would create follow-through sales of [popular content like] ringtones, ringbacks, and music downloads," says Lewis Ward, an analyst at IDC. If users hear a song they like on their cell-phone radio, they'll be able to immediately buy a related ringtone via their cell. That should accelerate the growth of the $500 million ringtone market, as well as sales of ringbacks and music downloads.
Of course, one reason the cellphone service providers like their closed networks is so that they can make more money via associated services. I still can't believe that people pay as much for ringtones as they do. Open up the network, let people buy ringtones without paying the cellphone service provider tax.
Most cell-phone radiocasters, though, plan to use existing wireless networks, but to varying extents. Motorola's iRadio, expected to cost $5 a month, will let customers download hours of radio programming via a PC. New radio-ready Motorola phones are expected to be unveiled this fall. Motorola plans to insert snippets of breaking news into these broadcasts as they're downloaded over its wireless network.
Downloading hours of radio programming via your PC already has a name. It's called "podcasting". Still, perhaps Motorola will share some of their technology, or help work on an open standard, for mixing breaking news with less time-volatile content. Would be useful.

via Mobile Content News

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Telecomm | Tools

June 21, 2005

Thierer on Big Media

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Posted by Ernest Miller

On Monday, Adam D. Thierer, Senior Fellow and the Director of PFF's Center for Digital Media Freedom (CDMF), wrote an essay on media ownership for Tech Central Station (What Ever Happened to the Big Media Boogeyman?). The article bashes those who were fearful of too much media concentration, pointing out that many of the major media companies are splitting up rather than consolidating. To a certain extent this is true. However, the article goes too far in its claims.

Regardless, this is an example of a well-functioning, dynamic marketplace at work. Media critics seem to think that any merger or acquisition is all just part of some sort of grand conspiracy to destroy democracy or competition, but in the end, things sort themselves out and we end up with an ever-expanding universe of media options at our disposal. Indeed, ask yourself a simple question: Do you have more media options and outlets at your disposal today than you did 5 to 10 years ago?
This is not a well-functioning market. It is a highly distorted one. I agree with Thierer that media ownership rules are foolishness. However, I don't look at our currently regulatory structure and think it is a "well-functioning" market. Is it well functioning when SBC has to beg local communities to provide television service? Is it well-functioning when VoIP providers have to meet stricter E911 requirements than cellphone companies? Would the broadcast flag be an example of a well-functioning, dynamic market? I don't think Thierer thinks so:
The real danger here in not just that asymmetrical FCC regulations will doom old media players to an early extinction, it is that -- in the name of fairness and "leveling the playing field" -- the old rules gradually come to incorporate new media outlets and technologies as well.
Well, if that is the case, then isn't there a problem with current media ownership? It isn't a product of a well-functioning market, it is the product of asymmetrical FCC regulations that seriously distort the market.

Those who argue in favor of more media ownership rules may have the solution wrong, but they're right that the current ownership structure is seriously flawed and distorted.

via PFF Blog

Comments (0) + TrackBacks (0) | Category: Telecomm

Die Cellphone. Die! Die! Die!

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Posted by Ernest Miller

Paul Resnikoff of Digital Music News muses about the future of the iPod in a world where cellular phones have increasing music carrying capabilities (Resnikoff's Parting Shot: The Future of the iPod). He doesn't think the iPod has much to worry about it, yet.

This is a variation of a question that is always asked. Will mobile gaming devices be swamped by cellphone/game consoles? Will digital cameras be made irrelevant by cellphones/cameras? Will MP3 players be made irrelevant by cellphone/MP3 players? No. No. And No.

Why not ask instead, will the cellphone be able to survive domination by combination game console/phones? Will cameraphones be made irrelevant by cameras with phone capability? Will MP3 players that let you call out destroy the market for phones with MP3 capability?

Cellphones aren't going to go away, but they're only a tool for communication. There is nothing particularly special about them that makes them the only form factor for communication. At base, they're a commodity device. Why are cellphone manufacturers so darn busy creating things to do with a cellphone other than communicate? Because, otherwise, there isn't much to distinguish the darn things.

My life doesn't revolve around my cellphone. My life is about the other things I do. I want to have a digital camera that takes good pictures, a game console that is designed to play cool games, and an MP3 player designed to handle thousands of songs, playlists and podcasts. And, oh yeah, I want connectivity. I don't want a "cellphone."

Stop pretending to sell me cellphones. Honestly, the cellphone companies aren't really selling cellphones. That is just the sales pitch. The cellphone companies are essentially selling commodity connectivity and trying hard to hide that fact with fancy cellphone capabilities.

Data is data. Sell me connectivity and let me pick my own darn devices to take advantage of it.

That's right, I said "devices." I'm paying for the connectivity, so why should it matter how many devices I can use to take advantage of that connectivity? Sometimes I want to take my camera to the park. Sometimes I want to take my game console when I anticipate a wait at the doctor's. And I want to take my MP3 player for the workday commute.

Used to be that you could only get your landline phone from AT&T. They decided what equipment you could use on their network. We got rid of this foolish requirement and the internet was able to bloom.

Why do we continue to tolerate similar foolishness for cellular?

Comments (1) + TrackBacks (0) | Category: Open Access | Telecomm | Tools

June 20, 2005

No Decision in Grokster, Brand X Today

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Posted by Ernest Miller

So, there I was, sitting in hot standby to blog the heck out of decisions in Grokster and/or the Brand X case, but the Supreme Court has held those decisions once again. From SCOTUS Blog (Court Decides Six "Second Tier" Cases):

The Supreme Court, on a day on which it issued six decisions, released none of the major controversies still to be decided -- the Ten Commandments displays cases, music and movie downloading and copyright, government seizures of private property for private re-development, and access to cable companies' broadband lines for high-speed Internet connections.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Telecomm

June 18, 2005

June 16, 2005

June 15, 2005

June 14, 2005

Gov't Support for Media Discussed

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Posted by Ernest Miller

Jeff Jarvis is attending the Annenberg Foundation Trust at Sunnylands' Institutions of Democracy and discussing the First Amendment and government support for media with mass communications professor Timothy Cook (Gov Giveth and Gov Taketh Away).

Various ideas were raised by respondents that made my spine shake: taxing ads to support publications with fewer ads, giving postal subsidies only to publications below a circulation threshold, government search engines.
As Jeff responds, "Arrrgh."

There is insight here: the government shapes our communications environment far more than we realize. However, these ideas for direct subsidy seem to do both too much and too little. Too much in that they invite all sorts of governmental decisions about what sort of content and media should be subsidized and too little in that they don't address the structural and architectural elements of our communications infrastructure.

Telecomm (and I'm not talking about the distraction about "media ownership") and copyright law are the real powers that shape our communications environment. You want to talk about government helping media, that is where you have to look.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Telecomm

June 13, 2005

June 11, 2005

June 09, 2005

June 08, 2005

June 07, 2005

June 03, 2005

May 31, 2005

May 27, 2005

May 23, 2005

May 20, 2005

FCC Demands Enhanced 911 for VoIP in Next 120 Days

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Posted by Ernest Miller

As expected, the FCC has ordered VoIP carriers that interconnect with the traditional telephone service to implement enhanced 911 capability within 120 days.

Read the press release: Commission Requires Interconnected VoIP Providers to Provide Enhanced 911 Service [PDF].

Here's an interesting quote:

[This order] does not place obligations on other IP-based service providers, such as those that provide instant messaging or Internet gaming services, because although these services may contain a voice component, customers of these services cannot receive calls from and place calls to the PSTN.
And, now they're definitely not going to, even though one would expect such convenient technology to be developed in the near future. What is it about innovation that the FCC doesn't like? And, given the statements of the commissioners that public safety is job #1, what is to prevent them from requiring such obligations in the future? If they have authority to regulate VoIP, they are claiming authority to regulate all IP-based services. Note how this quote is framed ... it is not that they can't regulate IP-based online games, it is that they chose not to.

And here is one of the scary parts:

Finally, the Commission stated its intention to adopt, in a future order, an advanced E911 solution that includes a method for determining the customer’s location without the customer having to self report this information.
IP is just bits. It doesn't care whether the bits are voice or some other form of data. If the technology will tell people where you are based on an IP datastream for voice, it will very likely be able to tell people where you are for any IP datastream. Gee, I wonder if this technology will ever be used for anything having to do with geographic censorship and privacy violations, among other things?

All four of the commissioners have issued separate statements:

Chairman Kevin Martin is all about the public safety and wishes he could order that the rules be implemented immediately (Statement of Chairman Kevin J. Martin).

Commissioner Kathleen Abernathy statement wasn't closely proof read as it repeats several paragraphs verbatim (Press Statement of Commissioner Kathleen Abernathy [PDF]).

Commissioner Michael Copps shows his frustration with, you know, the law (Separate Statement of Commissioner Michael Copps [PDF]):

For far too many years now, the Commission has engaged in all sorts of term-parsing and linguistic exegesis as if just finding the right descriptor for new technologies would magically create a policy framework for them. Yet here we are today still trying to determine if those who provide new calling technologies need also to provide up-to-date emergency calling and location capabilities to those who use their services. The sad fact is that we have spent so much time splitting hairs about what is a telecommunications service and what is an information service that we have endangered public safety. At some point the semantic debates must end and reality must assert itself—when customers sign up for a telephone they expect it to deliver like a telephone. When an intruder is in the house and the homeowner goes to the phone to call the police, that’s a call that just has to go through.
Commissioner Jonathan Adelstein's statement is a little more detailed and worth reading for a better understanding of what the order is trying to achieve (Statement of Commissioner Jonathan Adelstein [PDF]).

More later, but be sure to read Prof. Susan Crawford's take when the reports that this would happen started yesterday (911 and VoIP):

This is crazy. It's not even clear what the Commission thinks its source of jurisdiction is. Non common-carrier VoIP service providers surely don't fit under Title II. And the DC Circuit has clearly told us that Title I isn't the ever-expanding golden purse that the FCC thought it was. So just what gives the Commission the power to do this?
Read the whole thing.

Comments (0) + TrackBacks (0) | Category: Telecomm

May 17, 2005

May 16, 2005

May 12, 2005

May 02, 2005

Opening Networks to Censorship in Order to Keep Them Closed

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Posted by Ernest Miller

On Freedom to Tinker, Ed Felten discerns the real reason that mobile phone companies are looking into self-regulation with regard to indecent ringtones and what not (Mobile Network Providers Flirt with (Self-)Regulation). Felten is writing in response to this Reuters wirestory (Ratings System in Works for Wireless Content). As Felten rightly notes, this isn't about self-censorship due to fear of the FCC as much as it is about inviting regulation by the FCC in order to maintain the mobile phone networks as closed networks.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

March 30, 2005

March 28, 2005

Microsoft Cozying Up to Washington Regulators

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Posted by Ernest Miller

The Seattle Times has a very informative article about the ways that Microsoft is becoming involved in Washington lobbying, particularly in the regulatory arena (Microsoft woos new pals in D.C.). I highly recommend reading this article to learn a bit about how many of these various regulatory issues tie together, at least from the perspective of one company.

The article also reveals (inadvertantly, perhaps) many of the tensions within our existing regulatory structures. For example, the article notes:

In yesterday's analog world, television programs were delivered on TVs, radio shows on radio. Today's technology has complicated the situation by enabling cable, computers and all manner of electronic devices to deliver the Web, phone service, music, video and other digital content.
Why is that convergence is complicating the situation? The situation has been complicated by regulatory structures that created artificial distinctions among various forms of distribution technologies.

There is also some disingenousness:

Only a few years ago, Microsoft opposed the [broadcast] flag, because such an approach attempts to tell software designers what to include and sets limits on the Internet. But now, Microsoft cannot afford to tick off its fledgling friends from Hollywood, the movie moguls it will need to provide content as it ventures into new video technology.
Gee, and it couldn't have anything to do with Microsoft desiring to be a gatekeeper to technological development in the video distribution sector and to inhibit the development of open source alternatives. Microsoft is just trying to help its friends in Hollywood. Yeah, right.

Anyway, read the whole thing.

Donna Wentworth has a couple more things to say on this over on Copyfight (Why Microsoft Won't Fight the Broadcast Flag).

Comments (1) + TrackBacks (0) | Category: Telecomm

October 12, 2004

Regulate Speech or Free It? Responding to Sinclair Broadcast Group's Decision to Air Anti-Kerry Film

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Posted by Ernest Miller

Last Saturday, the LA Times (reg. req.) broke a story regarding the plans of the Sinclair Broadcast Group (owners of 62 television stations in 39 markets) to preempt regularly scheduled programming about a week or so before the presidential election in order to air a film attacking Sen. John Kerry's activism against the Vietnam War (Conservative TV Group to Air Anti-Kerry Film). Such a move is unusual:

"I can't think of a precedent of holding up programming to show a political documentary at a point where it would have the maximum effect on the vote," said Jay Rosen, chairman of New York University's journalism department.
Of course it is unusual. It would be unusual if a major newspaper, magazine, or website made a similar announcement of preemption in order to publish partisan content on behalf of a particular candidate. However, though there might be complaints about the decision to do so, there would likely be little question that the newspaper, magazine, or website had a right to do it.

That is not the case for broadcast:

Still, although broadcast stations are required to provide equal time to major candidates in an election campaign, the Sinclair move may not run afoul of those provisions if Kerry or a representative is offered time to respond. Moreover, several sources said Sinclair had told them it planned to classify the program as news, where the rules don't apply.

Calling it news, however, poses its own problems, said Keith Woods, dean of the faculty at the Poynter Institute, a journalism school in St. Petersburg, Fla., that teaches professional ethics. "To air a documentary intended to provide a one-sided view of Kerry's record and call it news — it's like calling Michael Moore's movie news," he said, adding that the closer to an election that a controversial news report is aired, the "higher the bar has to go" in terms of fairness.

If you don't like what Sinclair is doing, then there are three basic responses to it:
  • Everybody Should Do It.
    If the rightwing is going to broadcast propaganda, then the leftwing should organize the purchase of a network of broadcast stations and broadcast its own propaganda.

    Not a terribly satisfying solution, however.

  • Government Regulation of Speech.
    This can be done either as regulation of broadcast through the FCC or regulation of campaign speech through the FEC.

    Either option should concern free speech advocates. Do we really want government commissions to decide what counts as "news" and what doesn't? What is fair and what is not? Does extending the mess of campaign finance reform to include ever more publishers make a lot of sense?

  • Change Broadcast Regulation to Eliminate Gatekeepers
    Might it possibly be that Sinclair's decisions are merely a symptom of the regulatory structure of broadcast, and that the best way to cure it is to change our regulatory structure? I argue yes.
Our Broadcast Regulatory Structure Made Sinclair Possible

And I'm not talking about the recent controversy over cross-media ownership that has been the focus of so much attention this past year. I'm talking about the fundamental structure of our broadcast regulatory structure.

I find Reed Hundt's comments to Josh Marshall telling (From Reed Hundt):

If Sinclair wants to disseminate propaganda, it should buy a printing press, or create a web site. These other media have no conditions on their publication of points of view. This is the law, and it should be honored.
Call me crazy, but if most other media is free to publish whatever it wants (something we call freedom of the press), shouldn't our first question be why broadcast gets treated so differently? Why isn't there freedom of the press for broadcast?

Basically, because broadcast is a government-licensed gatekeeper. Imagine if we had a Federal Newspaper Commission that decided who was allowed to publish newspapers in a particular city. Suddenly, we would have calls for a "fairness doctrine" for newspapers and other government regulation of newspaper content.

One might argue that the broadcast airwaves belong to the people and they must be licensed by the government and regulated because of scarcity. Even if there was scarcity, so what? Cellphone companies lease the scarce airwaves as well. Local telephone companies exist in part because of scarce government granted rights of way. Yet, we don't worry about them distributing propaganda, because our regulations have structured their businesses differently, so that these companies don't really care what they distribute. They are common carriers. There is no particular reason why broadcast couldn't be regulated in a similar way.

Hundt spoke of buying a website to distribute propaganda. Well, perhaps we should try to transition broadcast regulations so that broadcast acts more like the internet. Why should the government maintain a medium that requires government content regulation? Shouldn't the government attempt to structure things so that such content regulation is unnecessary?

The real scandal of what Sinclair is doing is not the propaganda, but that so many people seem to readily accept government regulations that create a perceived need for regulation of free speech.

Comments (12) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

September 01, 2004

Game Consoles and VoIP

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Posted by Ernest Miller

There has been much talk about the use of Xbox Live as a VoIP platform, such as this article from C|Net News back in February 2004 (Playing Games with VoIP). Today, there are a number of interesting articles concerning gaming consoles and VoIP.

Jeff Pulver, the dean of VoIP, has an interesting speculation about who will dominate the VoIP space in 2005 (Nintendo and Sony May Dominate the Consumer VoIP Marketplace in 2005):

Both Nintendo and Sony are now leveraging the power of IP communications to incorporate both IP Voice and IP Video inside of their products, without directly marketing these products as VoIP devices on their own. Both the DS and PSP are well positioned to be living examples of “killer applications” for IP Communications. So while these companies won’t be calling their platforms powered by: “VoIP Inside”, we just need to smile when we read about the buzz surrounding these really cool consumer products.

Details regarding the DS and PSP has been written about in countless gaming magazines over the past few months but it was only recently that my kids connected the dots and told me about these new products that are well positioned to redefine gaming amongst the 10 year-old set (and their parents.)

It may be just a matter of time before some of the more creative forces within the VoIP industry start to announce the availability of commercial VoIP communication services associated with these really cool devices.

Indeed. Especially considering the news from Gamespot today (Analyst note: Nintendo DS invites free voice-over-IP chat):
In its Electronic Entertainment Industry Update released today, TNI Securities reports that the recently revealed headset port on the Nintendo DS will be used in conjunction with the built-in wireless 802.11b networking capabilities to offer voice-over-IP chat--in effect, allowing gamers to use the DS to make free phone calls at wireless network hotspots.
That is real news (via Gizmodo).

What is most interesting to me is the WiFi capability. Many people dismiss WiFi as a VoIP platform due to coverage issues and what not. However, I think there is a lot more potential than most people realize. Coverage doesn't have to be perfect if the connectivity is free and the capability is built into a device you have already. Instead of cameraphones, phonecameras. You use it mostly as a camera, but it has limited phone capabilities when you need that, too.

This won't happen overnight, but Nintendo has sold an awful lot of GameBoys ...


Slashdot has more (Nintendo DS To Allow Free VoIP Calls).

Comments (0) + TrackBacks (0) | Category: Telecomm | WiFi

August 31, 2004

Voicemail over IP is the New Postcard

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Posted by Ernest Miller

Denise Howell relates an anecdote in which the wonders of VoIP demonstrate one of the myriad changes in our near future (PSA Re Law Firm Voicemail):

Note to anyone who might be contemplating calling a law firm and leaving a voice message that might be even remotely considered, shall we say a novelty:

More and more firms are using voicemail integration systems like Cisco's Unity Messaging. The upshot of this is voicemail becomes automatically and immediately freed of the phone, showing up as a .wav attached to the recipient's email. (I'm now so used to receiving voicemail this way I've all but forgotten how to get it off the phone itself.) From there, the message becomes trivially easy to forward or upload, whereupon the analog circle is closed as audio bits become widely circulated paper. [links in original]

Of course, you don't need fancy voicemail integration systems; this capability will be default for VoIP systems very soon, if it isn't already.

Comments (0) + TrackBacks (0) | Category: Telecomm

August 30, 2004

The Google File System

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Posted by Ernest Miller

Slashdot points to an extremely interesting Google Gmail hack - the Gmail File System (GmailFS - The Google File System):

GmailFS provides a mountable Linux filesystem which uses your Gmail account as its storage medium. ... GmailFS supports most file operations such as read, write, open, close, stat, symlink, link, unlink, truncate and rename.
Most of the comments on Slashdot deal with the fact that this hack probably violates Google's terms of service and may result in users having their accounts abruptly terminated. However, there are some insightful ones (Re: GoogleOS).

More importantly, this does point towards another piece of the internet operating system puzzle (or, more specifically, Google Operating System).

Gee, I wonder if the advent of a Google Operating System will have any impact on copyright law, telecom regulation, etc., etc., etc...

On a somewhat related note (GoogleWatch Says 'Google Is Dying').

Comments (0) + TrackBacks (0) | Category: Copyright | Internet | News | Open Standards | Telecomm | Tools

July 21, 2004

FCC Roundtable on Regulating the Internet

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Posted by Ernest Miller

As the communications world migrates to IP-based services, the FCC feels that it is losing regulatory control over the endpoints of the network (where most of the interesting stuff is happening). Consequently, the FCC is trying to figure out ways that it can regulate the endpoints, either through breaking the end-to-end principle and/or direct regulation of the application layer. This should be a scary thought to anyone who thinks dumb networks are a really good idea. As part of this massive regulatory shift, the FCC will be holding a roundtable discussion on July 30, 2004 (FCC Announces Agenda and Featured Panelists for July 30, 2004 Global Roundtable Discussion on Internet-Protocol Based Services [PDF]):

On Friday, July 30, 2004, the FCC’s Internet Policy Working Group (IPWG) will hold a roundtable discussion to address international issues associated with the migration of communications services and applications to IP-based technologies. The event is open to the public, and seating will be available on a first-come, first-served basis.

Comments (0) + TrackBacks (0) | Category: Internet | Telecomm

July 09, 2004

FCC Chairman Powell Has a Blog - No, Seriously

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Posted by Ernest Miller

FCC Chairman Michael Powell has launched a blog [As Dave Barry would say: I'm not making this up] (Michael Powell Joins the Blogosphere). So what does the chairman have to say in his first post? Well, he reiterates his commitment to deregulation, that is, when it doesn't upset entrenched interests too much.

Our struggle to define appropriate regulatory regimes to promote innovation is not limited to the telephone sector. The Commission's digital television transition is yet another example of how difficult the struggle can be.
Yeah, the broadcast flag is really going to promote innovation. Why, just think of the useless technology developed because television was an open platform! To borrow some concepts from Prof. Frink, "I predict that, if the FCC were in charge of developing the VCR, that within 100 years a VCR will record twice as much programming, be 10,000 times larger, and so expensive that only the five richest moguls in Hollywood will own them."
For example, I need to hear from the tech community as we transition to digital television. It may be possible to deploy innovative wireless services in the unused spectrum between broadcast stations (for example, there is no channel 3 or channel 6 here in San Francisco)...Broadcasters, however, claim these unused channels as "their" spectrum. Yet a public policy that favors innovation and experimentation would seek to open these unused channels to develop new wireless services…just look at how much value has been created in the sliver of spectrum that has become Wi-Fi! If the high-tech community believes that new digital technologies will enable this kind of new thinking about and use of spectrum, then I need to know that.
*ahem* Chairman Powell, it may be possible to deploy innovative television services based upon an open television platform. Broadcasters, however, claim that they must control and direct development of a closed platform, that the platform is "theirs" and requires a "broadcast flag." Yet a public policy that favors innovation and experimentation would seek to open the platform to develop new services…just look at how much value has been created in the open analog television platform! Many in the high-tech community believe that new digital technologies will enable this kind of new thinking about and use of an open television platform. *ahem*
Regulated interests have about an 80 year head start on the entrepreneurial tech community when it comes to informing regulators what they want and need, but if anyone can make up for that, Silicon Valley can. This is important not just for Silicon Valley—it's essential to insure that America has the best, most innovate communications infrastructure.
You know, unless it upsets Hollywood. Because Hollywood will ensure that America has the best, most innovative communications infrastructure.

via JD Lasica

Jeff Jarvis has some harsh words for Powell's "blog" (Daily Stern - July 9, 2004).

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | News | Telecomm

July 06, 2004

Quote of the Day: Telecom and DRM Edition

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Posted by Ernest Miller

Telepocalypse discusses why DRM is bad for communication networks (DRM - enemy of telecom):

Ultimately, telecom is about communications, not media. DRM inhibits communications. That’s the opposite of what you’re after. If we’d had DRM before the Internet became widely available, telcos would have sold a lot less dial-up and broadband, and the industry would have even more unlit fiber than it does today.

Comments (0) + TrackBacks (0) | Category: Digital Rights Management | Open Standards | Telecomm

July 02, 2004

Major Broadcast Networks to Decrease Convention Coverage - Author Experiences Schadenfreude

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Posted by Ernest Miller

Apparently, once again, the major broadcast networks will be scaling back political convention coverage, according to The Hill (TV to snub conventions). As I've noted recently, I think the "news" coming out of the conventions should get a lot less coverage (Blogging the Political Conventions). However, I must confess a bit of schadenfreude when I read The Hill article. Read on...

...continue reading.

Comments (1) + TrackBacks (0) | Category: Telecomm

July 01, 2004

FCC to Fine Only Viacom for Broadcasting Indecency - Why?

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Posted by Ernest Miller

Reuters is reporting that the FCC is going to fine Viacom $550,000 for Janet's nipple flash on the SuperBowl (Jackson Breast Flash May Get $550,000 Fine-Source). Jeff Jarvis notes that this would mean Janet completely topless would rate a million (The Daily Stern: The million-buck boobs). Ba-dump-bump. But, seriously folks, the decision isn't final and the Commissioners still have to vote on it. What intrigues me, however, is that the fine lawyers at the FCC apparently have argued that the 20 stations owned by Viacom should pay the maximum fine allowable, but the stations that aired the incident but were not owned by Viacom pay nothing. I have a feeling that at least one of the commissioners will complain about that, but let's think about possible reasons for that distinction:

  • People are less offended when indecency is broadcast by community smut peddler, instead of national smut peddler.
  • Statement by Commission that, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area," just a lie to trick unwary media conglomerates into slipping up.
  • FCC Chairman Michael Powell has changed his mind, there is not one First Amendment, but two. One for media conglomerates, another for local affiliates.
  • Local affiliates aren't responsible for what they broadcast. They're just there to collect the checks.
  • FCC clumsily making up for increased media concentration by fining only concentrated media.
  • "They can't fine us all." Local affiliates were right, FCC administratively unable to fine all 180 local affiliates, too much paperwork.
  • Ooops. FCC thought they had already allowed all media to concentrate in single company. Didn't realize there were still local affiliates.
  • It's arbitrary. "We're the FCC. ALL our indecency rulings are arbitrary. What are you going to do about it, huh?"
  • Permitting local affiliates to broadcast indecency without fines will make them more competitive. Supports FCC policy goal of increasing local media diversity.
  • No one was actually watching SuperBowl on the 180 local affiliates that broadcast it.
  • FCC upset that Viacom subsidiary Paramount Pictures has ruined Star Trek franchise.
These are just a few of the possible justifications. Feel free to make up your own. The FCC will.

Comments (6) + TrackBacks (0) | Category: Freedom of Expression | Oddities | Telecomm

June 28, 2004

End-to-End Must Die So that National Security May Live

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Posted by Ernest Miller

Prof. Susan Crawford has been breaking and following some monumentally important stories recently. Her latest regards one of my favorite federal agencies, the FCC, and the huge power grab it is considering exercising with regard to the internet. This is no joke, the FCC is considering regulating everything that uses the IP protocol (Nethead/Bellhead -- Noticing DHS). If you think this is just about the big telecoms, you're wrong:

"[National Security/Emergency Preparedness] NS/EP considerations provide a compelling rationale for applying a certain amount of regulation to IP-enabled services. The purpose of such regulation would be to ensure the prioritized availability of certain communication services to Federal, state, and local officials and first responders in times of emergency or national crisis."
Crawford is quoting from the Department of Homeland Security filing in the IP-related services proceeding (In the Matter of FCC Review of Regulatory Requirements for IP-Enabled Services: Comments of the Department of Homeland Security [PDF] The fun part of this document is that it won't let you copy/paste).

How much regulation is necessary?

"In the event of crisis, NS/EP national leadership must receive end-to-end priority treatment over other users. . . . NS/EP traffic must be identified with its own class of service -- above and beyond "best effort."
This, of course, would mean the end of end-to-end as IP providers would have to check packets to see if they were specially marked by the government (which would require all sorts of checks so that we could be sure the packets hadn't been spoofed and what not). Basically, we would have to build into the internet a smart network. Once you've done that, all sorts of other regulations become possible.

As Crawford notes, all of this would be done in the name of national security. You're not against national security, are you?

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Internet | Security | Telecomm

FCC's Adelstein on the Need to Protect the Children With Regard to DTV

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Posted by Ernest Miller

Nearly a month ago, FCC Commissioner Jonathan S. Adelstein gave a speech at a conference sponsored Children NOW, Digital TV: Sharpening the Focus on Children. You can read Commissioner Adelstein's speech here: Before the Children NOW Digital TV Conference, June 9, 2004, Washington, DC [PDF]. Below are some parts of the speech I felt telling (this isn't line-by-line, I skip much of the speech). Read on...

...continue reading.

Comments (2) + TrackBacks (0) | Category: Telecomm

June 09, 2004

Re-Charter the FCC, Don't Abolish It

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Posted by Ernest Miller

Yesterday, I responded to Declan McCullagh's die, FCC, die rant (Why the FCC should die) by saying that the FCC shouldn't be eliminated but re-chartered to promote open spectrum (Mend the FCC, Don't Abolish It).

Perhaps I am wrong as it seems that two economist bloggers support McCullagh's reasoning. Marginal Revolution simply agrees (Abolish the FCC). Winterspeak reiterates the point that spectrum should be privatized and auctioned off (Can the FCC). Neither considers the open spectrum model.

On LawMeme, however, James Grimmelmann does, referencing four distinct but related articles (Four Stories About Spectrum).

One of the articles is by David Isenberg on Wireless Unleashed, who rather conclusively demonstrates why the property/fee simple model of spectrum regulation doesn't make a lot of sense (Abolish the FCC -- but for a different reason).

Moore's Lore: That's Another Fine Mess (Interesting idea - worth thinking about, though probably not a winner - move the FCC into the judicial branch).

Comments (0) + TrackBacks (0) | Category: Telecomm

Broadcatching as Political Reform

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Posted by Ernest Miller

Prof. Michael Froomkin had a neat little post last week about the use of highly-partisan movies to skirt campaign finance laws (Movies as a Campaign Finance Law End-Run). The basic idea is to make a partisan movie, such as Michael Moore's virulently anti-Bush film Farenheit 9/11, and then advertise the heck out of it prior to an election. The 30-sec trailers for the movie could be as effective as campaign commercials as anything the candidates and the campaigns "officially" run. As Froomkin notes, this will be a "loophole it will be next to impossible to close."

It is funny, you know. The advent of campaign finance laws have tracked closely with the advent of traditional broadcast mass media. The money is raised for massive television ad buys, not print ad buys or billboards or a whole bunch of other things. I don't think the Democrats lose sleep over the fact that the Republicans can out spend them with regard to Washington Times page buys. But what is the common solution to the television ad problem? All sorts of arcane, loophole-ridden, cynicism-increasing, lack of respect for law fomenting, First Amendment-threatening regulation of how money is to be raised and spent (basically for television advertisements).

I look at this and I'm baffled. If the problem is the need to raise lots of money to run an expensive television-ad based election campaign, maybe the problem isn't campaign finance but the durn fool way we've regulated our broadcast medium. Rather than see the problem as one of campaign finance, why don't we see the problem as one of television regulation? If the major networks weren't bottlenecks and gatekeepers for the most popular medium of all, I don't think we'd have 1/10 the problem with campaign ad buys (and the money raised) that we have now. Read on...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Freedom of Expression | Telecomm

June 08, 2004

Mend the FCC, Don't Abolish It

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Posted by Ernest Miller

C|Net News runs yet another hyper-libertarian/quasi-anarchist rant from Declan McCullagh, this time about getting rid of the FCC (Why the FCC should die). Don't get me wrong, few people despise the FCC's current incarnation more than me. Even fewer government agencies suffer as much cognitive dissonance as the FCC; worshipping free markets where there is market failure and embracing censorious paternalism where people can make their own choices. However, McCullagh is also suffering a serious bout of cognitive dissonance when it comes to his solution.

For example, the article complains about the FCC enforcing the broadcast flag. Would private spectrum be any different? After all, software is mostly free of government regulation, but every major media software option provided incorporates DRM that is frequently worse than the broadcast flag. The FCC isn't requiring (yet) WMA and iTunes to incorporate DRM, but they do anyway. Private ownership doesn't protect against market structure created by other aspects of law.

Gee, think about how the DMCA will work with regard to private spectrum. Only authorized devices will be permitted to connect to the network. Hmmm ... sort of sounds like when the FCC banned homeowners from owning their own non-Bell phones, except the decisions this time will be made by a corporatist oligarchy.

Now, in his free market worship, McCullagh thinks that spectrum is more valuable if it is excludable - that is the "owner" can keep others from using the same spectrum. He doesn't even consider the possibility that spectrum could be free to use, as long as everyone obeys certain rules.

The FCC shouldn't be abolished, it should be re-chartered. We'd be better off if the point of the FCC was to attempt to enforce the end-to-end principle and make spectrum as dumb and free as possible.

Comments (3) + TrackBacks (0) | Category: Telecomm

May 26, 2004

Violence is the New Profanity?

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Posted by Ernest Miller

This news item from Broadcasting & Cable is nearly a week old, but it shows that the FCC wants to extend its control over free speech beyond sex (FCC Will Look at Violence). Interestingly, the study will focus on "the impact of TV violence on children." Note, the study won't be about the impact of broadcast TV violence, but TV violence alone, which leaves a lot of leeway for taking a look at a bunch of things like cable and etc.

via Lost Remote

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

May 25, 2004

FCC Requests Comments on a la Carte Cable Subscriptions

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Posted by Ernest Miller

Today, the FCC issued a request for comments regarding a la carte cable programming pricing (Comment Requested on a la Carte and Themed Tier Programming and Pricing Options for Programming Distribution on Cable Television and Direct Broadcast Satellite Systems [PDF]). This is an issue that has gotten much press recently, mostly due to consumer group pressure as well as conservatives who don't like the idea that some of their money might be supporting indecent cable programming.

Most of the articles that address this issue, however, deal solely with the question of whether consumers should have to pay for something they have no interest in. In contrast, a passle of economists argue persuasively that, in fact, cable bundling can be a good thing in aggregate. See, among others, Marginal Revolution: Why can't you choose your cable channels?. The basic idea is that "when demands are scattered [hard to tell who likes sports and who like cartoons] and the marginal cost of additional service is low," bundling makes sense.

However, this doesn't address the bundling that concerns me - the bundling of programming from content producer (think Disney) to cable company. If a cable company wants Disney's ESPN, they're going to have to take some of Disney's less popular channels as well. Read on...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Telecomm

April 13, 2004

The FCC and Idiotic Idiot Box "Innovation"

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Posted by Ernest Miller

Public Knowledge's President, Gigi Sohn, has an op-ed in C|Net News today on the FCC's digital media/broadcast flag powergrab (FCC is taking wrong turn on digital media). She points out a couple of the dumb things the FCC plans to do with their claimed power to regulate digital media. However, if the FCC gets away with the broadcast flag, imagine all the dumb ideas content providers will try to foist upon us.

Read on...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Telecomm

April 07, 2004

The Broadcast Flag Treaty - Draft Available

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Posted by Ernest Miller

Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.

Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.

Read on for a look at this monstrosity...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm

April 05, 2004

A Fond Look Back at the Television Code of 1951

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Posted by Ernest Miller

Jeff Jarvis is doing an excellent job following the FCC's attack on free speech for broadcast. His latest "Daily Stern" report points out the inconsistencies between FCC Chairman Michael Powell's previous statements on broadcast speech regulation and his current stance (The Daily Stern: Sayings of Chairman Powell).

More interestingly, however, Jeff is ripping apart the old, voluntary US Code of Practices for Television Broadcasters (The Daily Stern: The Code). The "Code" was the set of ethical guidelines established in the early days of television for United States television broadcasters, but was abolished in the 1980s. The reason Jeff brings it up again is because the FCC is now pushing broadcasters (and if Commissioner Michael Copps has his way, cable and satellite channels) to adopt a brand new set of "voluntary" guidelines. Many aspects of the old code seem laughable now, but which will broadcasters readopt if pushed hard enough by political pressure? Fifty years from now, which aspects of a new code will look laughably quaint? Some examples of the old code with Jeff's comments:

Attacks on religion and religous faiths are not allowed. Reverence is to mark any mention of the name of God, His attributes and powers.... [Clergy] portrayed in their callings are vested with the dignity of their office and under no circumstances are to be held up to ridicule.
So The Code is explicitly trying to proselytize the nation. And it won't allow us to make fun of, oh, Jerry Falwell, Jimmy Swaggart, Jim Bakker, or hundreds of kiddie-diddling priests.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

The Speech Powell Should Have Given on Indecency

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Posted by Ernest Miller

Last week, I wrote an annotated version of two recent speeches, one by FCC Chairman Michael Powell and the other by Commissioner Michael Copps, in which they addressed (behind closed doors) the National Association of Broadcasters regarding indecency regulation (FCC Commissioners - No Free Speech Please, We're Americans). Frequent commentator Cypherpunk thinks that I was overly harsh with regard to Michael Powell, who formerly was a strong defender of freedom of speech in broadcasting (Too Rough on Powell).

Rather than simply rebut Cypherpunk, I've adapted Powell's speech to give my version of what he should have said at the NAB meeting.

The original speech is here:
Remarks of FCC Chairman Michael Powell at the NAB Summit on Responsible Programming, The Renaissance Hotel, Washington D.C., March 31, 2004 [PDF].

Read on for my revised version.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Rating and Filtering | Telecomm

March 26, 2004

TiVo's Quasi-New Extended Commercial Model

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Posted by Ernest Miller

A few days ago C|Net News reported that TiVo is planning on rolling out a quasi-new advertising model this fall (TiVo looks to tune in to advertisers). The new system is described thus:

Known as Video-to-Video, the idea is to let viewers click a button on their remote control to immediately watch a 3-minute video describing products and services that might appeal to them. The marketing clips are promoted through small icons that appear on the TV screen as viewers fast-forward past regular ads.

This is a perfect example of TiVo forgetting what made it successful in the first place. Remember those cool, early commercials for TiVo in which a couple of guys charged into a television network's offices and tossed a programming exec out the window? While the commercials might not have been terribly effective (many people still don't "get" TiVo), they did get to the heart of what makes TiVo successful: empowering viewers. With TiVo you no longer had to watch programs when and how the network execs (or advertisers) chose.

...continue reading.

Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | Open Standards | Telecomm

March 23, 2004

Howard Stern Should Ask FCC: What is Profane?

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Posted by Ernest Miller

Last Friday I wrote about the FCC's decision last Thursday to begin enforcing their power to regulate "profane" language, something they have not done before (FCC Revives Notion of the Profane). See also this followup by Constitutional law guru Jack Balkin: Hate Speech Codes For Broadcasting?. Jeff "BuzzMachine" Jarvis has been, well, a machine when it comes to posting on this issue. Start with today's "Daily Stern" and just follow the links to previous posts for all the news fit to blog.

Despite all this discussion, however, I am still in the dark as to what "profane" means as the FCC interprets it.

Warning: Highly offensive language used as examples below.

...continue reading.

Comments (16) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

RSSTV Emergency Broadcatching System

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Posted by Ernest Miller

On Saturday, Andrew Grumet announced the release of RssReader 0.4d (RssReader 0.4d). In Andrew's words, "RssReader is TiVo-resident software that displays the contents of an RSS feed on your television." Of course, who the heck really wants to read RSS feeds on television? Sounds like one of those dotcom-era WebTV-like monstrosities. Instead, Andrew notes that "More interestingly, RssReader can schedule recordings from syndication feeds containing RSSTV extensions. This means you can subscribe your TiVo to a community-evolved ToDo list, such as the feed generated by Program My TiVo!" Absolutely, and something I think has amazing potential (RSS for TV, Music).

However, I also think that there is not only a desire for at least some RssReader functionality on television, but important reasons to make it happen. Indeed, perhaps a grant from Homeland Security to Grumet would be in order.

Imagine an RSS feed that would scroll at the bottom of your television display while you watched any other channel, a news ticker if you will. It would be just like the scrolling feeds on the news and financial networks, but would be overlayed on top of whatever you are currently watching. Most importantly, the content would come from an RSS feed.

...continue reading.

Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | File Sharing | RSS | Security | Telecomm

March 19, 2004

FCC Revives Notion of the Profane

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Posted by Ernest Miller

In a decision released yesterday, the FCC announced a new doctrine of fining "profane" broadcasts. Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression. Could the FCC be getting into the business of regulating hate speech?

Caveat: This decision is in a really vague area of First Amendment law and I've written my thoughts within hours of the decision's release, so my analysis is preliminary.

...continue reading.

Comments (49) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

March 10, 2004

FCC Indecency Rulings Politically Determined?

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Posted by Ernest Miller

If you care about freedom of expression, go read the latest Jeff Jarvis on the whole FCC/indecency mess (The daily Stern - March 10, 2004). This especially ticks me off:

Howard Stern's source in the FCC tells him today that there have been meetings at a high-level in the agency strategizing when to fine Stern based on the impact it would have on the election of George Bush. Some argue that fining him now will make him a martyr and help him rally voters against Bush; others say not fining him will make him look like a boy who cried wolf; others say they should get rid of Stern now because, to their surprise, much of his audience does vote. and he can have an impact on the election.
If that is true, that that could not be a clearer violation of the First Amendment: an agency of government using fines for political ends to affect political speech.
If that is true, if any such discussion occurred in the agency, then they should be hauled before Congress or courts right now.


There is much, much more from Jarvis. Read it all.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

March 09, 2004

Telecomm Regulation Encourages Media Consolidation

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Posted by Ernest Miller

The Street has an article on what is becoming an increasingly common occurence: disputes between content creators and cable/satellite distributors that result in loss of signal for consumers (EchoStar Tiff Tarnishes Content's Crown). In this case, content provider Viacom (home of CBS, Comedy Central, MTV, Nickelodeon and others) is facing off with satellite distributor EchoStar. The issue isn't so much about price apparently, as about whether EchoStar will be forced to carry Viacom's less popular channels in order to distribute Viacom's more popular channels.

The balance of power in this case is probably with Viacom, according to analysts. Viacom has enough power through its collection of popular channels that it can essentially force EchoStar to take the unpopular channels, otherwise Viacom will withhold the popular channels and viewers will be upset with EchoStar.

The logic of this situation for content creators is to merge, merge and merge, so that they have similar negotiating power with regard to distributors. The logic of this situation for distributors is to buy content creators so that they have the power over other content creators. In other words, both sides are put under pressure to achieve more media consolidation.

One way out of this vicious circle is to structure telecomm regulation so that distributors such as cable companies, satellite and broadcast are regulated as common carriers. Viacom would not be able to force unpopular channels on the distributor, rather, bandwidth would be allocated based on neutral, transparent rules. This would certainly decrease the content creators' incentives to consolidate and remove the distributor's incentives entirely.

The problem isn't an irrational desire for consolidation, the problem is a regulatory scheme that encourages consolidation.

via Techdirt

Comments (10) + TrackBacks (0) | Category: Open Access | Telecomm

March 05, 2004

VoIP Hits Retail - Walmart Next?

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Posted by Ernest Miller

USA Today reports that consumer electronics retailer Circuit City will begin selling Vonage VoIP phones in all 600 locations come Monday (Circuit City to offer Vonage Internet phone service):

Those who sign up at the electronics giant will save $100. An adapter from Circuit City costs $100, but Vonage will offer the first two months of service free — a $70 savings — and waive the $30 activation fee.

Most people still have no idea what VoIP is. Moves likes this will likely increase consumer awareness of the possibilities of escaping POTS. This alone will not cause a major shift, but it is definitely a sign that VoIP is going mainstream. The next step? Vonage at Walmart, I'm thinking.

Telepocalypse uses the occasion to note that "plain vanilla" VoIP services like Vonage don't make any sense (I don't get it). He is right, but only in the long term (which might not be that long). I also think that Vonage and many of the other VoIP start-ups realize this as well.

As Telepocalypse notes, the appropriate unit price for such services should be zero. Which makes it a great business for Walmart to use as a loss leader.

Ultimately, there is going to have to be significant VoIP penetration and consumer awareness before non-plain vanilla services can take off. Heck, I'm not sure anyone knows which services will turn out to be the most valuable and we won't be able to find out until there is a significant number of people using them. Best way to get people to use it? Sell it at Walmart.

Comments (0) + TrackBacks (0) | Category: Telecomm

February 27, 2004

What Part of the First Amendment Don't You Understand?

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Posted by Ernest Miller

I'm talking to you, FCC Commissioner Kevin J. Martin.

According to a Reuters wirestory posted on Infoshop, Martin wants the FCC to consider regulating indecency on satellite and cable (FCC's Martin ponders indecency on pay TV, radio).

Let me think about that ... um, no.

"Cable companies need some way to empower parents and families to have more choice," Martin said. "I think that it has the potential to be a problem when they are receiving things they object to and have to pay for that."

It's called stop paying for cable, Martin. It's called a lockbox, Martin. Its called the First Amendment, Martin.

What a maroon.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression | Open Access | Telecomm

February 03, 2004

Issue Ads and Responsibility

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Posted by Ernest Miller

John Palfrey takes an interesting and brief look at CBS's decision to air non-controversial issue ads, but not controversial ones, such as the anti-Bush contest winner (Is anti-smoking not an issue?). Palfrey's intutition seems to be that there is something wrong with CBS's decision, though under existing law it is clearly constitutional. For example, Palfrey points to Marsh v. Alabama, a company-town case. Although it isn't legally on point, Palfrey seems to be making an analogy to the Super Bowl because of the game's incredible popularity. Just as it is bad policy for a company-town to restrict the pamphleteer, so it is bad policy for CBS to restrict its television commercial sales for the extremely popular Super Bowl (though Palfrey is not claiming it is unconstitutional).

I agree with Palfrey's intutition that what CBS is doing is wrong. However, I don't think the problem has anything to do with the Super Bowl (should speech be more subject to regulation because it is popular?), but with our telecommunications regulatory scheme in general. Broadcasters, cable and satellite networks have the power to discriminate because the government has given them that power. Speakers, of course, should have the right to discriminate, that is what freedom of expression is all about. However, broadcasters, cable and satellite networks are not merely speakers but distributors as well. Of critical importance is that these networks are the creation of government regulation.

As I've argued previously, creating and maintaining such distribution monopolies is precisely one of the things the First Amendment was meant to prohibit (It's Freedom of the Press, Stupid). Letting broadcasters descriminate in what they will broadcast is like letting Chevrolet build a bridge on public land and then decide what cars get to cross it, or having railroads built using eminent (I almost wrote, "public") domain and then deciding who gets to transport goods via train. Interestingly, a similar analogy is used in Marsh v. Alabama, noted above:

Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. And, though the issue is not directly analogous to the one before us we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. [emphasis added]

Palfrey ends his post with this:

But, leaving the Constitutionality question aside, and thinking hard about the relevant policy questions, I'm still unconvinced that CBS is wholly in the right on this one.

Palfrey is right. CBS is wrong. However, CBS is not simply wrong on "this one" but the very existence of government telecomm-regulation-created CBS is wrong in general (not to mention unconstitutional).

Comments (6) | Category: Freedom of Expression | Open Source | Telecomm

November 20, 2003

It's All About the Distribution, Stupid

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Posted by Ernest Miller

O'Reilly Network writer Andy Oram, inspired by Dave Winer's piece on candidates taking stands on internet regulation, makes a plea for a global approach towards information law (Time for a data transmission summit). I couldn't agree more with Oram that we should view many of the issues involved with regard to cyberlaw as an interconnected whole. It is interesting that Oram frames this issue as one of "data transmission." This echoes my viewpoint. As I am wont to say, "It's all about the distribution."

For example, when we discuss copyright reform, it is almost always in the context of existing telecommunications regulation. However, what if existing telecom regulations are part of the copyright problem? If, for example, there is a near monopoly on the primary means of music distribution, such as radio, won't that seriously distort the market that copyright is supposed to create?

Really, isn't telecom about the distribution of information (subject to the First Amendment, as I note here: It's Freedom of the Press, Stupid). Isn't copyright really about how copyrighted information is distributed? An argument that I make here: Taking the Copy Out of Copyright [PDF].

Of course, I'm completely onboard with a summit dealing with issues of "data transmission" taken from a broad point of view. However, I'm not sure if a summit is a good idea right now, since there isn't really a consensus yet that all these elements are actually related and what the nature of that relationship is. My concepts may be wrong, but I am convinced that there is a relationship among these issues. Perhaps the nature of that relationship is what a summit should address.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Internet | Open Access | Telecomm

November 11, 2003

Phone Number Portability for All Ordered by FCC

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Posted by Ernest Miller

Although it hasn't gotten much attention, this is a pretty major story - the FCC is requiring wireline phone providers to let customers take their landline numbers to a cellular phone. Read the press release: FCC Clears Way for Local Number Portability between Wireline and Wireless Carriers [PDF].

Commissioners' statements [PDF]:

You can also read: C|Net News - FCC: Number-switching rules apply to all and the New York Times (reg. req.) - F.C.C. Backs Phone Number Portability.

Of course, this order does not require the opposite, that you can take your cellphone number and transfer it to your landline (the, perhaps valid, excuse is the expense of updating old telco tech). However, the convenience of such portability is not to be underestimated. Increasingly, customers will be abandoning landlines and using cellular as their primary voice device. This is bad news for the traditional telcos as Kevin Werbach points out (Number portability and the telco death spiral).

Of course, VoIP can be inherently portable. For example, I can take my Vonage router and connect it (via ethernet) to any broadband connection and phone calls to my assigned number are routed there.

The recording industry thinks that new technology threatens their existence ... the telcos are dead men walking.

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November 08, 2003

WW2 Metaphors for the Future of Telecom

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Posted by Ernest Miller

Telepocalypse paints an ugly picture for the future of telecom as he postulates that the major players will fight to control one of their last remaining bulwarks - the voice directory (OPINION://RIAA, MPAA, CTIA?). In particular, he thinks that VoIP will trigger a battle that will pit telco vs. customers:

Expect directory access to be the Normandy landing of the IP revolution....The final march to Berlin will be around whether you or your telco controls inbound connection requests to your own devices.

Provocative stuff, with perhaps more than a grain of truth.

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October 30, 2003

The Future of Voicemail

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Posted by Ernest Miller

Telepocalypse speculates about what voicemail might look like in a non-PSTN world (Voicemail: don't phone home). For example:

You should be able to listen to voicemails on your plane journey home. You should be able to reply to them on a store-and-forward basis, even when you’re not connected to the network. And most of all, you shouldn’t have to use a clunky telephony user interface to navigate a message queue. And you shouldn’t be restricted to one device for accessing your own data.

Absolutely right, of course. I actually have some of that capability right now with my Vonage service. For example, Vonage emails me whenever I get a voicemail message. I am also able to access voicemails via a browser interface, downloading them as MP3s. This is a pretty handy function when I am away from my Cisco VoIP router.

In any case and more importantly, Telepocalypse is making a larger point about how voice services do not have to be tied solely to a telephone paradigm in the future. We need to reconsider all voice or telephone services from this broader perspective.

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October 28, 2003

The VoIP Regulatory Debate Revealed

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Posted by Ernest Miller

Jeff Pulver notes on his blog that the FCC has an interesting collection of reply comments dealing with the issue of VoIP regulation (Vonage FCC Petition: Update).

All of the reply comments, can be read by visiting: and entering: 03-211 in the Proceeding Box. [link and emphasis in original]

There are 40 comments in PDF format. Seems like just about every organization with an interest had something to say. Reading them will provide a good look at the various arguments regarding regulation of VoIP.

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October 25, 2003

GAO - Capitalism Good for Cable Companies

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Posted by Ernest Miller

The Washington Post publishes an article on a recent General Accounting Office report on competition in the cable industry (GAO Suggests Competition Good for Cable). The report can be found here (Telecommunications: Issues Related to Competition and Subscriber Rates in the Cable Television Industry [PDF]). Read the highlights [PDF].

The report found, unsurprisingly, that where there is a choice of two cable companies (only 2% of markets) consumers benefit with cable prices approximately 15% lower than those markets without competition. Where direct broadcast satellite providers can provide local channels cable companies respond by offering better service. Also, unsurprisingly, networks with a cable affiliation are more likely to be available than those networks without a cable affiliation.

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October 24, 2003

California VoIP Regulation Update

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Posted by Ernest Miller

The Mercury News has a great article updating the process going on in California regarding regulation of VoIP services (Internet phone firms protest regulation bid). The California Public Utilities Commission has ordered six VoIP companies to register as phone companies by last Wednesday. None have, but they have registered their objections. The Commission will probably look at the issue mid-November.

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Your Friendly Neighborhood Electric IP Company

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Posted by Ernest Miller

Jeff Pulver provides a short update on the progress of broadband power line communications (PCL) (Current Technologies: Wi-Fi Coming soon to a Telephone Pole Near You). The news is that there has been progress in developing the technology that will permit broadband access via powerlines. Instead of connecting to the internet via DSL and your phone company or via the same cable that brings you the Sopranos, you'll get broadband via your powerlines. This would be a great way of producing additional competition for connectivity. I hope Jeff is right in his optimism.

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October 23, 2003

VoIP Update - Int'l Regs, McLaughlin, Wash Post Summary

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Posted by Ernest Miller

Once again, lots of news on the VoIP front. The Washington Post has a good article summarizing most of the recent events on the VoIP front, with a few new tidbits, such as noting that California isn't convinced that VoIP can't be regulated by the states (Identity Crisis).

Jeff Pulver notes on his blog that international regulators are keeping a close eye on VoIP as well (Pending threats of International VoIP Regulation). Unfortunately, Jeff doesn't provide much detail.

Andrew McLaughlin responds to Kevin Werbach's contention that the Vonage decision [PDF] will actually reduce pressure on the FCC to reform VoIP regulation (More VOIP: Query to Kevin Werbach). You can read Kevin's comments here (More on the Minnesota Vonage ruling) as well as mine (The Vonage Discussion Continues). Andrew basically argues that while the pressure on the FCC might have decreased, the pressure for comprehensive reform on the Congressional level has increased. I hope Andrew is right.


C|Net News questions whether VoIP will make geographic-based area codes obsolete (Geographic area codes on the way out?).

UPDATE 2 1600 PT

C|Net News reports on a partnership deal between Net2Phone and Puerto Rico cable company Liberty Cablevision that will permit Net2Phone to provide VoIP service to Liberty's customers (Net2Phone dials in Puerto Rico cable company). Small cable companies, such as Liberty, might find providing VoIP too expensive or too much outside their realm of experience. Partnerships such as this solve that problem, and encourage VoIP adoption.

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October 22, 2003

Georgia (Telephones) On My Mind

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Posted by Ernest Miller

So far this week I've had a number of posts on various issues regarding VoIP regulation. Well, the news about this industry continues to move at an extraordinary pace. C|Net News is reporting that Georgia residents no longer have to pay for a telephone line if they only want DSL (Internet phones peachy in Georgia?). Usually, when you get DSL you have to pay for a phone line whether you want one or not. Now, presumably, many of those who get DSL and would be happy to get rid of their traditional phone service will be able to switch to VoIP entirely and save significantly on the phone bill. For many who haven't gotten broadband yet, this might be the incentive they need. Very cool. The decision from the Georgia Public Service Commission does not seem to be available on the internet yet, but I'll be looking.

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FCC Heading Down Wrong Path on VoIP Regulation?

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Posted by Ernest Miller

Telephony Online reports that, in the wake of the Vonage decision [PDF], both the Bells and the FCC are interested in looking at new regulations and regulatory structures for VoIP (Bells: FCC needs to take quick action on VoIP).

Kevin Werbach, on his Werblog, is concerned that the FCC will create another set of untenable set of definitions for VoIP regulation (Moving forward on VOIP). In particular, his initial thoughts are that the below distinction won't work:

Last week, Christopher Libertelli, senior legal advisor to FCC Chairman Michael Powell, speaking at the U.S. Telecom Association conference in Las Vegas, said the commission could develop three sets of rules based on the different methods of provisioning VoIP services: via private networks; over networks that touch the PSTN; and via evolving peer-to-peer networks.

Werbach should know, while at the FCC he was involved in developing the distinction used in the Vonage case between phone-to-phone and computer-to-computer calls.

In any case, I would have to agree that this initial stab at new definitions by the FCC doesn't seem at all promising. We need to start thinking about telecommunications regulation in whole new ways.


C|Net News is reporting that Time Warner is planning to expand its cable-based VoIP system from one to three or four cities by the end of the year (Net telephony grows on Time Warner).

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October 21, 2003

The Vonage Discussion Continues

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Posted by Ernest Miller

Berkman Senior Fellow Andrew McLaughlin has responded to my post on the Vonage decision (More on Vonage: Ernest Miller's Critique). In the end our disagreement is minor: whether or not the decision will be more or less likely to lead to telecomm reform, which we both agree is absolutely necessary and most likely inevitable. Former FCC lawyer Kevin Werbach thinks that the decision reduces some of the pressure for change (More on the Minnesota Vonage ruling). I agree. However, I think that change is inevitable. I don't believe the current system can continue indefinitely without some reform. The only questions I am worried about are when reform will come and what form that change will take (I doubt our current lobbying/regulatory system will get it right).

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Rep. DeGette Doesn't Get It

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Posted by Ernest Miller

Rep. Diana DeGette (D - CO), has penned an anti-open access commentary in C|Net News (The irony of 'network neutrality'). Her main complaint? Regulating access and regulating content and functionality are pretty much the same thing, they're both regulation and regulation is bad. Thus, we shouldn't regulate access. I had to double check that she was actually a Democrat. The commentary reads like talking points for a cable lobbyist. She even attacks the "stupid network" argument:

By effectively handcuffing broadband operators and restricting their rights to forge innovative relationships with other applications and content providers, the Microsoft crew is, in fact, seeking to dumb-down the heart of the network in order to strengthen the power of its own members.

I don't know about you, but I think that dumbing-down the heart of the network is a feature, not a bug.

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October 20, 2003

Future of Digital TV Threatened By More Than Broadcast Flag

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Posted by Ernest Miller

The Broadcast Flag issue is incredibly important, see, among many others Copyfight (What's the Deal?). Then let your Reps, Senators and the FCC Commissioners know how you feel, either through EFF or

However, the Broadcast Flag isn't the only issue that puts the future of unrestricted digital television in doubt. Case in point, the New York Times (reg. req.) reports on what may be the coming death of stand alone personal media recorders, such as TiVo (Can Cable Fast-Forward Past TiVo?). A couple of quotes to consider:

"This really is the last stand for the stand-alone boxes; this is a dying product," Aditya Kishore, an analyst for the Yankee Group, a technology consulting research firm in Boston, said in a telephone interview. "This is the last Christmas for the stand-alone TiVo box, or any stand-alone DVR box. By next year, the DVR functionality will be widely available in a wide range of other devices, including the set-top boxes."
"We believe that over time, DVR technology is going to be the standard," said Mark W. Jackson, an EchoStar senior vice president. "Everyone is going to have it. It's just a question of when - and who they get it from, of course."

I certainly hope that the Yankee Group analyst is wrong, because otherwise the question asked by Mr. Jackson becomes much more important. What the NY Times is reporting is that the cable and satellite companies are bundling personal media recorder capabilities with their services and this will eliminate the market for independent devices. The problem with this is that it also gives the cable and satellite companies control over the function of such devices. Skipping commercials, recording anything you want, and networking the device with other devices will almost certainly be restricted. Sounds an awful lot like the broadcast flag.

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October 18, 2003

Telecomm Regulation Madness and Vonage

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Posted by Ernest Miller

Berkman Center Senior Fellow Andrew McLaughlin has a new blog and one of his first posts is an interesting look at the recent Vonage v. Minnesota Public Utilities Commission [PDF] decision (Judge Davis Gets It: The Internet is Not a Telephone). I think that Andrew and I actually agree quite a bit, but merely differ as to emphasis.

While I sympathize with the outcome (who thinks that the Minnesota Public Utilities Commission should be regulating VoIP?), I don't find the reasoning of the decision particularly compelling and I don't think the decision inherently important. The problem isn't the judge's, but the entire regulatory scheme. The judge is simply making due with a confusing morass of regulation built through decades of industry-driven lobbying. His decision is important only to the extent that it highlights some of the internal contradictions of existing regulation; it doesn't provide a compelling alternative or solution (though that isn't the judge's job).

...continue reading.

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