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News Archive: July 2008

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7/31/08 - Sirius/XM Merger Sidebar [link to this story]

As lobbying over the conditions of the merger between the Sirius and XM satellite radio networks entered the home stretch, iBiquity Corporation and the National Association of Broadcasters requested that the Federal Communications Commission mandate all future satellite radio receivers to be interoperable with terrestrial digital AM and FM broadcasts.

This was a move by HD Radio's proponents to try and get something for nothing. XM and Sirius both subsidized the adoption of satellite radio receivers, especially in vehicles, by making the reception technology freely available and offering special deals to new subscribers (such as free service for a year or more, especially for folks who bought new cars and trucks with a satellite radio receiver as an option). In contrast, iBiquity Corporation wants those who make and market HD radio to pay it a cut from every HD receiver sold - effectively asking auto companies to partially pay the way for HD's adoption. This is a proposal that nearly all have resisted.

On July 10, just two weeks before the FCC cast all its votes on the Sirius-XM merger, General Motors and Toyota filed brief comments addressing the question of interoperability between digital satellite and terrestrial radio technologies. GM and Toyota both strongly opposed the notion of making interoperability a condition of the satellite radio merger. Not because of any problem with the satellite companies themselves, but due to misgivings about HD Radio.

Not only is "HD...already penetrating the automotive sector without a mandate" and "[n]othing in our companies’ respective agreements with [satellite radio broadcasters] inhibits our ability to offer HD radio," GM and Toyota further worried that "once mandated, the holders of the intellectual property for HD would have no incentive to be fully responsive to the demands of the marketplace."

In sum: two of the world's largest vehicle manufacturers are leery of the wholly proprietary nature of HD Radio and believe that its success or failure should be based on listener adoption, not mandated inclusion in the dashboard. It is a very strong message of no-confidence in the HD technology; perhaps the strongest articulated by any vehicle manufacturer to date. The FCC's final decision on the merger did not make satellite and HD interoperability a condition of the deal - this question will be taken up in a separate, future inquiry.

7/27/08 - XM/Sirius Merger Hinged on Piracy Compliance [link to this story]

After a week-long, non-transparent deliberation, the Federal Communications Commission has reportedly signed off on the merger of the XM and Sirius satellite radio networks.

Many of the tea leaf-readers did not correctly forecast the outcome: most expected at least one Democratic Commissioner, Jonathan Adelstein, would vote for the merger, provided there were certain public interest obligations on the new, singular satellite broadcast entity. These would have included requirements such as a percentage of total satellite radio capacity be devoted to non-commercial, possibly public-access channels, and that the new company provide tiers of service that do not gouge existing and future subscribers. Some of these conditions will apply to the merged company, but the Commissioners' votes themselves ultimately split along party lines.

Instead, approval of the merger centered around a much different issue: resolving the shocking fact that XM and Sirius have committed radio piracy on a scale dwarfing anything ever seen in U.S. broadcast history. This first came to light in 2006, when it was revealed that both XM and Sirius were illegally operating hundreds of terrestrial repeater stations. These repeaters help amplify the space-based satellite signal and are integral to providing nationwide coverage for both networks. Several hundred repeaters were either being operated out of variance with FCC rules (overpowered and/or misplaced); some of these were wholly unlicensed (essentially pirate repeater stations built and maintained by XM and Sirius). This behavior was condoned at the highest levels of both companies.

On top of committing piracy on the transmission-side of their airchain, both XM and Sirius knowingly and willfully designed and worked with manufacturers to sell aftermarket mobile satellite radio receivers which translate the satellite radio signal into an FM signal, which can then be picked up by a vehicle's original stereo system. The power levels for these "transceivers" are strictly capped, but XM and Sirius ignored these technical rules - essentially turning hundreds of thousands, if not millions, of vehicles into mobile FM pirate rebroadcasters.

For two years, the FCC has been investigating these appallingly egregious violations of its rules. In order for the merger to be finalized, this investigation had to be concluded. A consent decree signed between the FCC, XM and Sirius, the language of which was finalized just hours before the last Commissioner voted on the merger, requires the two companies to pay a combined $19.7 million to settle their piracy problems. In addition, XM and Sirius agree to turn off or modify the operation of more than 100 terrestrial repeaters, which until last Friday continued to operate afoul of the FCC's rules.

That point bears repeating: even though the FCC was well-aware that XM and Sirius were engaged in widespread, willful, and repeated violations involving unauthorized (and, in some cases, unlicensed) broadcasting, and the companies knew they were under investigation, they continued to break the rules until the last possible moment - and the FCC implicitly endorsed this practice.

Now, let's do the math. XM and Sirius have admitted to operating at least 200 outright-pirate or out-of-tolerance terrestrial repeaters. If the consent decree were simply based on the number of transmission-related violations the two companies engaged in directly, this would work out to ~$98,000 per violation. But this figure does not include any penalty assessed for marketing those technically-rogue transceivers.

The number of these transceivers in the marketplace is not quantifiable - but if they were added into the math, each considered as a separate violation in and of itself, it would most definitely bring the per-violation penalty for each company down by several magnitudes. Were XM and Sirius your garden-variety FM pirate, and given the willful, repeated, and reportedly continual nature of their violations, the penalties should be much stiffer. Put simply, if you or I tried a caper like this, we'd most likely end up in jail.

However, a consent decree is not the same as a monetary forfeiture; mostly the preserve of corporate cases, a consent decree allows XM and Sirius to make a "voluntary contribution" to the U.S. treasury in exchange for not being held to account for any wrongdoing. Thus, a consent decree is not really a penalty at all - it is a slap on the corporate wrist, a wink-and-nod that wrong was done, but the official record will not reflect it.

The fact that the FCC treats corporate pirates much differently than your garden-variety free radio station is well-documented. Such violations are apparently standard practice within the wireless microphone industry. The notion that the XM/Sirius merger boiled down to this disparity is stunning. Fortunately, the consent decree also requires the merged company to develop a "compliance program" for its terrestrial-based RF emissions, which hopefully means it will not engage in future pirate or pirate-like practices. That being said, the fact that neither XM nor Sirius are being held seriously accountable for past bad behavior on does not make me all that confident that the new-found "compliance" itself will be much more than a charade.

Fiscal necessities - the realization that satellites alone could not provide XM and Sirius with complete, nationwide coverage, and the fact that aftermarket mobile satellite radio transceivers needed more power to make the signal listenable on a car's FM tuner than the FCC would allow - led the companies to engage in this illegal behavior in the first place. Neither company has yet turned a profit, and there's no guarantee that this merger, in and of itself, will fix that particular quandary. Therefore, there's no guarantee that the new, singular satellite broadcast entity will not engage in the same behavior going forward, only this time in a more subtle and quasi-sanctioned fashion.

7/22/08 - Truthful Translations Almost Go Mainstream [link to this story]

No, not the massive archive curated here: this boost is courtesy of Stephen Colbert's "Make [John] McCain Exciting Challenge." The Colbert Report uploaded footage of McCain standing behind a green screen, and then asked the public to make his speechifying more attention-grabbing through the magic of digital video editing technology.

Some of the contributions are kind of lame (McCain droning on in front of a UFO, some dinosaurs, or mixed into a plethora of movie scenes), while others are more creative. Somebody mashed McCain with Madonna, for example, and another made a pretty wack techno mix.

Nobody's yet gone the extra mile to "re-translate" McCain beyond his visual surroundings (i.e., re-wording the man himself in order to make him make more sense). Hopefully, that step isn't far behind. If you are so inspired, don't hesitate to let me know; your creativity is always welcome here.

7/17/08 - Miscellaneous Follow-Upage [link to this story]

After months of frustration, the hosting provider for has saved my day by stepping in and graciously providing me with independent, unrestricted e-mail capability. I'll never have to rely on Comcast again for that application (provided Comcast's general broadband network uptime remains reliable, which is a questionable proposition).

You know you've got a systemic problem when the first prompt a customer encounters at your 1-800 number is, "For trouble with your service...."

Secondly, Paul the Mediageek and I had extended conversations on my late-spring adventures in Budapest, which he's subsequently made into shows. You can listen at these links.

7/14/08 - "Glimmer" Downgraded to "Mirage" [link to this story]

What a difference a weekend makes.

Last week, Congress passed a bill retroactively legalizing and expanding the surveillance of the communications of U.S. citizens. This bill may have unintended and negative effects on the campaign to re-instill the principle of network neutrality as a point of law.

Shortly after Congress' action, two developments took place: both the Electronic Frontier Foundation and American Civil Liberties Union filed lawsuits against the FISA Amendments Act, challenging its constitutionality on a number of levels. Notably, none of the principals of the media-reform movement have signed onto these legal efforts as of yet.

Secondly, Federal Communications Commission Chairman Kevin Martin made noises that his agency was preparing to sanction Comcast, the nation's second-largest broadband-service provider, for violating its "principles of broadband network management practices" (i.e., engaging in widespread data-discrimination across its network). Many net-neutrality advocates interpreted these words as a "victory" for the principle; I even speculated that Martin's move was timed in part because Congress' work on the surveillance issue may have inadvertently undercut the agency's jurisdiction and authority over the network neutrality issue.

After about a day and a half of happy-buzz, Martin and the FCC clarified their position - Comcast will not be substantially penalized in any meaningful fashion for its data-discrimination practices. There will be no further investigation, no priority inquiry, not even a monetary forfeiture: instead, the FCC will require the company to "disclose" its bandwidth-management practices and "encourage" Comcast to adopt more "protocol-agnostic" methods of shaping the traffic that flows over its pipes. Any "order" that comes out of the FCC's August 1st meeting will be more of an admonishment than a "precedent-setting win" for the principle of network neutrality.

As a result, I stand behind my original worry about the risk that "network management" becomes synonymous with "national security" as an unintended consequence of expanding an unconstitutional surveillance program, and we must examine and confront the network neutrality dilemma through this new prism.

I also am inclined to believe, as Matthew Lasar commented on last week's Mediageek radio show, that the FCC may be making a more symbolic move in order to reiterate a claim of administrative jurisdiction over the network neutrality issue. The Federal Trade Commission (FTC) has also made noises about asserting authority over network-management practices, and Martin's posturing may be a sign of something more akin to the iteration of an agency turf-struggle than substantive movement in the direction of regulation to promote a more democratic online environment.

I'm sure there will be plenty of conjecture and preemptive spin regarding net neutrality before the FCC's August meeting, but only the Commission knows what it will do - and truth be told, it probably really doesn't even know at present. Chairman Kevin Martin has a penchant for cutting backroom deals, pulling controversial items off Commission's agenda at the last minute, and even delaying or canceling meetings when the policy-stars aren't lining up just his way.

This all could very well end up being much ado about nothing, save for the publicity-mileage the various constituencies who dominate discussion of the issue will get out of it. The most likely remedy for all of this will ultimately be found in Congress or the courts. It was the judiciary (and the FCC) which got us into the net neutrality mess in the first place, and that leaves Congress. Given that the "Internet Freedom Preservation Acts" are stuck in neutral themselves, telecommunications companies and broadband service providers will continue to get away with business as usual. The longer business as usual stays in effect, the harder attaining the goal of making network neutrality a point of law again becomes.

7/11/08 - Glimmers of Hope for Network Neutrality [link to this story]

Although Congress may have just inadvertently given telecommunication companies a huge legal boost to engage in network management via the pretext of "terrorism-related" surveillance, it is a long shot from being a done deal. For starters, the Electronic Frontier Foundation has launched the first in what is expected to be a multi-lateral legal attack on the constitutionality of the FISA Amendments Act; the starting point is a claim that the law violates the separation of powers clause of the Constitution, in that Congress' action unconstitutionally empowered the Executive branch while emasculating any judicial oversight or reprimand of abuses conducted under the permission of the legislature.

Should the entire FISA Amendments Act be declared unconstitutional - and not just the provision granting telecom companies retroactive immunity for spying on us without proper legal justification - the diminishment of network neutrality under the auspices of national security would be undermined, perhaps fatally. That would be a very good thing. EFF's legal experts don't expect action on their lawsuit to really begin to gain traction until later this year - right around (or shortly after) the November elections. The case itself won't likely be resolved until sometime next year at the earliest.

The other glimmer of hope is Federal Communications Commission Chairman Kevin Martin's intent to sanction Comcast in some way, shape, or form for unjustly interfering with communications across its network. The actual penalty remains to be determined, but will most likely involve a monetary forfeiture. The sanction-proposal is currently being drafted at the FCC, and it is reported that the full Commission may vote on the issue at their August 1st meeting.

This is quite a change of stance for Martin and the FCC. Although the agency has opened an inquiry into just what network neutrality is (and should be), it has undertaken this task reluctantly, and prior comments by Martin had suggested that he'd rather let "the marketplace" sort out the issue. The fact that Martin's newly-stated intention comes just shortly after the passage of the FISA Amendments Act suggests perhaps that the agency itself is aware of how the legislation may limit its options for dealing with future policy, which has forced the FCC to move more forcefully against Comcast than it might have originally intended.

Meanwhile, the "Internet Freedom Preservation Act" languishes in committees in both the House and Senate; passage of the bill is not likely during this session of Congress, which means the grassroots lobbying effort to enshrine the principle as law legislatively will most likely have to start over next year.

7/9/08 - Congress Shreds Constitutional Privacy, But It's Not Over Yet [link to this story]

Today the U.S. Senate voted to approve legislation that essentially legalizes the warrantless surveillance of the communications of U.S. citizens. We know such behavior's been going on for more than two years, when a whistleblower stepped forward to disclose that AT&T had been working closely with the National Security Agency (NSA) - so much so that the NSA now has its own special rooms in AT&T communications backbone facilities. In these rooms are giant, electronic taps that essentially monitor, record, and allow for the analysis of every phone call, facsimile transmission, and all other electronic communications passing through AT&T's network.

As the largest telecommunications provider in the United States, it is virtually impossible for any communications network traffic to travel from point A to point B without transiting some node in AT&T's vast infrastructure. Which in effect means that for as long as this program has been going on, we've all been under Big Brother's scrutiny to some degree.

After the stunning scope of the surveillance program came to light, civil-liberties advocates started digging deeper, and found that AT&T wasn't the only telecom company that was "assisting" the U.S. government in its "war on terror" by snooping on innocent Americans. This set off a flurry of litigation urging the courts to force AT&T and its corporate colleagues to disclose just how far beyond the Constitution they went in their support of the U.S. Justice Department's requests for information - and, by extension, just how far the Executive Branch of the government overstepped its own Constitutionally-defined authority.

"No fear," thought the telecoms, "we'll just go to our friends in Congress, who have such a stellar record at protecting civil liberties, and they'll give us a 'get out of jail free' card."

And that is essentially what the Senate did today. It not only legitimized the continuous, warrantless surveillance program currently in place, but expands some parts of it (which parts, we don't exactly know), and retroactively immunizes telecommunications companies from punishment over laws (privacy and otherwise) they've broken (and continue to break) at federal behest. This even though more than two-thirds of the Senate still doesn't know the true extent of the NSA/DOJ surveillance program, because the NSA/DOJ won't tell them.

The next likely occupants of the White House, who are both Senators, split on the issue - though not like you'd think. John McCain (R-AZ) abstained from voting on the bill, while Barack Obama (D-IL) voted for it. The White House is thrilled; president Bush plans to sign the bill into law with no delay.

The full implications of this decision remain to be seen. It could have disastrous consequences for the ideal of "network neutrality," or the notion that all communications traffic routed over the Internet should be treated equally and not discriminated against based on content, sender, or receiver. Telecom companies have already done much to make the Internet a more closed, proprietary space; now, Congress may have inadvertently given them the legal legs on which to continue to engage in - and intensify - so-called "network management" practices.

After all, what better reason for "network management" is there than surveillance? And hey, if the government says it's okay, then who the f*ck cares whether or not we throttle, shape, or otherwise block other traffic, like file-sharing programs or voice-over-IP telephony? "Network management" might have just become synonymous with "national security," and if that is the case, all bets are off. What good is an "Internet Freedom Preservation Act" if one of the fundamental freedoms of Internet communication has just been squelched?

The "FISA Amendments Act of 2008" is but just one of several bad things happening on the privacy and freedom-of-expression fronts in Washington, D.C. Another stinker working its way through Congress right now is the "PRO-IP Act." Like lots of other bills, this one has a clever name, which stands for "The Prioritizing Resources and Organization for Intellectual Property." As the culture industry more generally is now one of the United States' top exports, and major media companies have been working for years to warp copyright law to reduce public creativity with regard to the use of cultural products, passage of the PRO-IP act would be quite a coup.

The PRO-IP Act is especially scary for two reasons. The first is that it would create a federal "copyright czar" to work with major media companies to investigate and prosecute copyright infringement on several levels. This would more directly make the federal government an agent of Big Media, placing the onus for copyright prosecutions on the very same institutions that are supposed to, you know, guarantee freedom of speech through transformative expression and fair use.

What's worse, the PRO-IP act would also essentially apply the federal "war on drugs" forfeiture laws to copyright-related crimes. Just as law enforcement agencies across the country discovered the bounty they could reap by seizing assets they believed were used in the commission of drug crimes - resulting in the confiscation (rightfully or not) of billions of dollars of cash and property - the same frame of mind will be applied to copyright-related crime.

Imagine this scenario: you've decided, for your own reasons, to get rid of your personal CD collection, but first you digitize the music. On your hard drive, you now have copies of copyrighted material - copies which you rightfully own, because you bought the CDs. Now, let's say your home is destroyed by fire - your CDs are melted but somehow your computer survives.

Once you've gotten back on your feet, you re-connect to the Internet and engage in some innocuous file-sharing with friends (let's even assume you're sharing legal files). Since we already don't know just how much power telecom companies have to monitor and control our communications, and they're demonstrably more than willing to bend to the government's wishes, let's assume that the fact that you're engaged in file-sharing sets off some warning bells in a network operations center somewhere. You become a suspect; they somehow discover that you have copyrighted information in your possession, and you may be sharing it with others.

Under the PRO-IP Act, the Justice Department would then become involved. They'd open an investigation on you, allowing them to scrutinize your communications records - up to and including the information stored locally on your own devices. If they (meaning the RIAA/MPAA, prompted by the Justice Department) determine that you've committed a copyright violation, you'd be liable for both monetary and criminal damages. In addition, if reasonable cause can be found that you've somehow unjustly benefited from the sharing of copyrighted material, then the drug-forfeiture schema comes into play - allowing law enforcement to seize your computer and any other of your possessions it believes you received as a form of "unjust enrichment".

The PRO-IP Act, which was actually introduced late last year, has already and overwhelmingly been approved by the House of Representatives; currently it awaits hearing in the Senate's Judiciary Committee. An earlier provision which would have made it possible for people to be fined up to $30,000 per "unauthorized file" on their computers or other portable media devices was removed during House deliberations.

Finally, there is a piece of trade law under development that would forcibly apply U.S. copyright law - including, potentially, the draconian provisions of the PRO-IP Act - to several other countries. This measure is called the Anti-Counterfeiting Trade Agreement, or ACTA. ACTA originally began as a trade agreement designed to track and interdict the counterfeiting of real goods, like designer clothes and prescription medicines. At the behest of U.S. authorities, ACTA's purview was secretly expanded to include intellectual property. Under the new definition, "counterfeiting" involves the "unauthorized" copying of any digital media.

Here's another hypothetical: you decide to take a trip overseas, and bring along digital media devices. Upon your return, or at the customs checkpoint of any ACTA-participating country, you are stopped and asked to remove all of your digital media devices (laptops, cell phones, iDevices, etc.) for "inspection." Your items are then scanned for "unauthorized (read: counterfeit or copied)" information. The customs officer demands you show proof that you rightfully own the data you carry. You cannot. Your devices are confiscated, and you may face further penalty.

ACTA is also imminent: during the G8 Summit this week, the ACTA plan was endorsed and a timetable for implementation envisioned by the end of the year. The United States has already sullied itself quite thoroughly in the court of public opinion at fora like the World Trade Organization, so ACTA's being pushed as a multilateral agreement, whereby the U.S. individually pursues, entices, and/or coerces countries into accepting our principles of information freedom.

So far, Australia, Canada, most of the the European Union, Japan, Mexico, New Zealand, Russia, South Korea, and Switzerland have nominally committed to the implementation of ACTA. Combined with the PRO-IP Act and Congress' outright dereliction of duty with regard to the protection of our Constitutional liberties more generally, you might say the outlook is bleak; you might even say focusing on a fight over something like network neutrality alone is now strategically misplaced, because by the time you get what you think you want the meaning of "neutrality" has been redefined out from under your feet.

If you want to learn more about the PRO-IP Act and ACTA, check this conversation Skidmark Bob and I had a couple of weeks back on Freak Radio Santa Cruz.

7/5/08 - WEFT Back to Full Power, Sounding Better than Ever [link to this story]

Two days early, a crew of engineers and volunteers re-wired our transmission facilities to install WEFT's new 10,000-watt transmitter. Coverage has not only returned to normal, but increased slightly, and the fidelity provided by the solid-state unit we now have has noticeably improved our signal.

According to a story in the daily newspaper, WEFT's station manager says we'll be "raising funds to replace more aging equipment as well." Just in time for our fall fundraising drive....

7/1/08 - Sampling Community Radio in Budapest [link to this story]

I just uploaded some snaps to Flickr from my May trip to Budapest, which includes a few photos of two of the community radio stations in the city that I had a chance to visit.

Through the fortuitous circumstance of happening upon a fellow Wisconsinite while attending the ESF workshop (Paul the Mediageek just produced a show of us discussing that event in greater detail), who was also very interested in community radio, we ended up making contact with representatives from two community stations in Budapest, which we visited after the conference was over.

The first was Civil Radio, a forum specifically designed to provide a voice for "the social life and civic associations of the districts [in which its 50-watt signal can be heard], analyses the contacts between local governments and civic organisations, and reports on different NGO-support systems developed by different democratic governments." The station's programming is an eclectic mix of public affairs - on the afternoon we arrived, a news-analysis program was just wrapping up, and some teenage girls were waiting outside the studio to speak for an hour on their own issues.

At the same time, Civil Radio is also attached to a local cultural center, and often broadcasts its events live. This gives local performers of all genres of music, theatre, and spoken word the chance to be heard in (most of) Budapest. The station is run on a shoestring budget, mostly by volunteers, and although it receives some government support its direct identification with and representation of Hungarian civil society makes its relationship with the authorities not as smooth as it might otherwise be.

Interestingly, Civil Radio broadcasts from a tower left over from the country's Communist rule. The tower happens to be located on land owned by the local water utility, which has no use for it, so the station appropriated it. The utility and station now have an informal agreement allowing the practice to continue.

The second station we visited was Radio C, which stands for "cigányok," or "Roma" in Hungarian. Radio C represents the voice of the Roma people, a marginalized population found in all the countries of Europe and beyond (also referred to as "gypsies"). In Hungary, the Roma that we spoke with at the station characterize their situation as "of your Blacks in the 1940s" - ostensibly separate but equal, segregated, and treated with relative disdain by the rest of society.

Radio C is helping to lay the framework for what the Roma see as a bridge of understanding, justice, and eventual equality between themselves and the rest of Hungary - the station as foundation for a larger civil rights movement. Most Hungarians don't realize it, but much of their musical tradition stems from Roma culture; many of the country's most talented musicians happen to be Roma people. In this manner, the station serves a dual function: it is the quasi-official representation of Roma culture, but it also enlightens Hungarians more generally to the commonalities they all share but might not naturally recognize.

Radio C also makes sure it represents the voice of the Roma in civil discourse; the station began without a license after Hungary's capitalist transformation, but was begrudgingly legalized by the new government. Since then, the station has patiently and persistently leveraged its voice in order to gain access to and a place of power within society at large. The Hungarian government has reluctantly recognized the Roma as an important part of the country's civil and cultural heritage; some now serve in government; and the government itself has promised to fund Radio C directly (though it has yet to make good on this).

Regardless, the station perseveres, though it's not quite clear just how. It has plenty of paid staff, but no real recognizably consistent income stream. Yet enough people obviously recognize the importance of the station and do whatever it takes to keep the lights on. In that sense, Radio C embodies the self-sustaining spirit of the Roma people themselves. It would seem to be paying off: the 10-kilowatt Radio C is the eighth-most listened-to station in Budapest, serves more then 250,000 online listeners a month, and has ambitious plans to extend its range with a network of stations throughout Hungary.

The personalities of the Roma we met were amazingly affable and generous. Hank (the fellow Wisconsinite) and I were somewhat conspicuous in the neighborhood, but having the Radio C folks with us invoked magic acceptance by everyone we met. Many thanks especially to the station's general manager and operations director, Tivadar Fátyol and Ferenc Szénási, for making us feel such at home.