On Thu, Apr 15, 2010 at 2:44 PM, George Ou
<george_ou@lanarchitect.net> wrote:
First, it would have been nice had you provided some context with my
original piece.
[ Erik included a link to your piece near the top of his essay.
I made a point of verifying that. - Lauren Weinstein / NNSquad Moderator ]
It was probably unfair of me to critique you and for that I apologize. If the piece felt ad hominem, please forgive me. What annoyed me about your prolix was it sounded a lot like disinformation I see pushed by the likes of right wing Chicago school economic types that's typically filtered to fit ideology.
Cecil rambled on endlessly with a massive barrage of 0s and 1s but never
really made a point.
Well, George, I may have not made a point to you but the real audience for my comments have lived in the industry for decades. I could have set that up more clearly but was in a hurry. High level I simply took network configurations and ran various call and data flows over them. Then I contrasted them with what happens in the regulatory world. To keep it simpler than it would be were we to attach all sorts of ancient but largely meaningless labels like cable, telecom, wireless, wilreine, copper, coax, satellite, IP, and on and on, I simply rand it down to machine code to illustrate that regardless of software, regardless of programming, regardless of label or political or economic ideology, bits move across all of these networks without change.
So try reading it again if what you want to do is engage this on the substance, but if you just want to get up, call me names, and storm out of the room, no worries. But if your mind is not a pre-programmed ideological filter spouting off for some hidden agenda, then go for it. I don't mean that personally to you, but because policy sphere is full of people making authoritative claims without much basis, I decided to run it to ground.
Just so you know,m tour take away from my post should be:
a. that the appearance of deregulation is not deregulation.
b., asymmetrical deregulation (which incumbent bellco enjoys to a very wide extent), is more harmful than over-regulation; and
c. the ESP exemption, upon which you base much of your analysis has a history that is far more vast than your analysis even begins to indicate.
Then towards the end he makes a wise crack.
"So of course Title II has never been applied to the Internet.
"Reclassification is a myth." OK. Sure. Clear as day."
Well not so fast. Recall the intercarrier compensation wars and the fact that AT&T, Verizon, Qwest and every other landline LEC named in my post has sued every non-bell to the ends of the earth filing reams of pleadings, rivers of briefs, and mountains of testimony on their magical theories of how the so-called exempt IP-based communications become regulated only when Bellco makes money.
I tried to illustrate that with a detailed call flow, but if you don't understand, then ask; I'd be happy to explain and run you through the call flows, results, history etc. Wish we had a virtual white-board somewhere b/c drawing these out would make it clear what bullshit it is to say that Title II has never applied to the Internet. Between now and then take a look at a long discussion I had with most of the heavy hitting thinkers in this industry back in Dec. 2009 -
http://www.cookreport.com/index.php?option=com_content&view=article&id=250&Itemid=82 and then click on "Download the entire issue". Rip that up or hand it off to the PFF lawyers to rip up; doesn't bother me a bit; I've litigated against the best of the best, however, it gets boring when the other side just craps on with ideology, and if that's the case, I won't respond. I've got better things to do. If you or anyone sincerely wants to engage in open and honest discussion, however, I will cheerfully respond in kind.
I thought I was fairly clear when I made the distinction that there is a
difference between broadband transport (including the twisted pair copper
and a layer 2 ATM Private Virtual Circuit off of the DSLAM to be precise)
and broadband Internet which is the IP layer on Layer 3.
No, you weren't clear at all b/c that could be one of a dozen things. It depends upon which network, which call flows, which law, and even who is doing it. Nor do you deal with the fact that IP is simply statistical multiplexing while TDM is time division. In either case, the communication leaves in one form and arrives in the same form. That does not even begin to take into account the 30 year history of the ESP exemption or how often things you think are real come out 20x ways before the regulators and in the courts. I don't have time to teach a class on this subject, but there's others on this or other lists who may have time to run that down for you. (I would commend you to Bob Cannon's site -
cybertelecom.org - you can read up on all of the computer proceedings and basically everything there; it is a treasure trove of fabulous legal and policy information; there is no better single resource anywhere)
The transport for DSL up until 2005 was classified under Title II.
I think you are mixing up what happened in the TRRO with DSLs' common carrier status. I think, but you can correct me if I'm wrong, that DSL cased to be common carrier in 1999 with the GTE cases. But if you have a case citation for your 2005 precedent, please share it.
Brand X
tried to also put Cable Coax transport under Title II and initially won in
the 9th circuit but lost at the Supreme Court.
A whole different kettle of regulatory, economic, business, and other factual fish, which is one reason I decided to run the entire thing down to machine code and bits rather than try to chase through the hoops of (a) what really happened; (b) why it really happened; and (c) the 197 flavors of all of that between today and, say, uh, 1934.
But that wasn't my main point which was that the stuff above layer 2, the IP
service on layer 3 on up to the applications on layer 7 were never under
Title II common carrier.
Assuming anyone cares about the OSI stack, finds it relevant to current realities, or even that layers should drive FCC's ability to rein in monopoly control of loop plant.
Here's another sound bite for you: You cannot correct monopoly control of physical layer plant with the cloth of deregulation. Common carriage is common carriage. The once 4, now 6 Internet freedoms are ALL principles of common carriage, right down to non-discrimination (see, e.g. Sections 201(b), 202(a), and 251(c)(2)(D) of the 1934 Act; I'll skip the case citations but NARUC II and it's progeny may be illustrative in this regard).
And if we *reclassify* layer 2 under Title II
(which would be extremely difficult from a legal perspective since the FCC
would have to reverse 4 of their previous cases within the last 5 years, and
not appear to be making an end-run around the DC Circuit) it still wouldn't
apply to the IP layer and above.
Well here, again, you need to spend some more time with the subject. Turns out that the FCC already pours gobs of Title II requirements over any IP packets that happen to be associated with voice. This is the Title 1, ad hoc, let's make it up as we go along because packets are scary and complicated thinking the DC Circuit just blew out of the water and will blow out of the water again if the FCC keeps running down this path. What you don't appreciate is eons of dispute and mountains of cases on this subject. What you don't see is that the FCC's back is up against the wall b/c the exemption from regulation they created to allow the Internet in the first place has swallowed all networks.
And next time, I'll be kinder and gentler. My critique was directed far more at the RBOC-friendly bellheads at Progress and Freedom foundation than you personally. You were just putting up some thoughts on the subject. Feel free to engage me here or off list if you have questions, want copies of briefing / history - or I can somehow help you out on this.
Kind regards,
Erik
In fact, Harold Feld even admitted this in his trashing of "LEC boys". He
went as far as to say he didn't even mind if ISPs censored content so long
as there was competition from broadband transport unbundling. Again, that's
further evidence that Title II broadband transport doesn't apply to
*Internet* services before 2005 and it won't if the FCC went back to a
pre-2005 posture on broadband transport.
No, you've taken Harold's statements out of context and attempted they mean a damn thing to the DC Circuit. As smart of a lawyer as Harold is - because I know him and have worked with him - even he will admit that what he says on a blog or in a conversation has NO bearing what law the DC Circuit should apply. Were that it were otherwise, though because I agree with much of what Harold says.
George