An interesting interchange between Esbin and approve:ocean Reed -- god reading

[David Farber <dave () farber net>]

Barbara piece at end as text.

The David she refers to is Reid.

Dave

Begin forwarded message:

From: "David P. Reed" <dpreed () reed com>
Date: September 18, 2008 11:01:08 AM EDT
To: Barbara Esbin <BEsbin () pff org>
Cc: dave () farber net, Brett Glass <brett () lariat net>
Subject: Re: [IP] Re:   Does Disclosure Trump Net Blocking?    
relates   to AA blocking of VOIP by Barbara Esbin

By all means, please have Dave post your message!   Despite Brett's  
attempt to claim I am making ad hominem arguments, I take your  
arguments if anythings more seriously than you meant them  
(lightheartedly?).

The FCC is clearly the wrong place to regulate cellphone *behavior* -  
that is not its bailiwick.   It is the right place to discuss spectrum  
use rules concerning systems integrity of the ground-based cellular  
system due to in-flight use of phones.   The sole purpose of the FCC  
cellphone rules is related to technical systems disruptions that are  
possible: 1) to ground-based networks, 2) to inflight control systems  
(the latter are actually FAA concerns, primarily, since its mission is  
safety equipment).

I reject yours and PFF's attempts to conflate the cellphone  
regulations that the FCC does make with "network, management" rules  
that the FCC makes under an entirely different ambit, by means of some  
dodging and weaving regarding "seatmate behavior" and "air rage".    
That's not clear thinking - it's ridiculous.

Regarding PFF's "independent" status - I have no opinion.   I do know  
that the organization's reference to "Progress" and "Freedom" does not  
match any definition of progress or freedom that I ascribe to.   
Apparently Progress means whatever large companies decide to do, and  
Freedom means freedom for corporate persons from restraint, but not  
freedom for individual human beings from arbitrary corporate control.   
But that *is* my opinion only.  That focus on corporate "freedom" does  
seem to color PFF's employees' opinions, perhaps because that's whom  
they hire.


Barbara Esbin wrote:
> David:
> I wrote the attached response following your original post  
> concerning my
> piece on the Aircell VoIP issue.  I hope that you will consider the
> points that I raise and that we can debate these issues in an open and
> civil manner.  I have debated posting my response, but decided to send
> it directly to you.  If you are comfortable having Dave post it to the
> list, by all means let him know that; Brett is included in the "cc"  
> list
> because of his obvious interest in the matter.  Barbara
>
>
> -----Original Message-----
> From: David P. Reed [mailto:dpreed () reed com] Sent: Thursday,  
> September 18, 2008 9:39 AM
> To: Brett Glass
> Cc: dave () farber net; ip; Barbara Esbin
> Subject: Re: [IP] Re: Does Disclosure Trump Net Blocking? relates to  
> AA
> blocking of VOIP by Barbara Esbin
>
> One more thing about cellphones at cruising altitude - as an  
> engineer I do not recommend doing it.  However, thank god it was not  
> blocked by a ground-based "service provider" when many people used  
> their cellphones from the key planes on 9/11.
>
> Putting control in charge of an unthinking policy implemented  
> (apparently) to maximize profits for the operator, but justified by  
> whining about rude behavior among seatmates and shyness about  
> asserting one's rights (Esbin's ridiculous justification) would have  
> eliminated an
>
> important emergency option that in that case at least, saved lives.  
> (NOT
>
> ENOUGH).
>
> Let's stop the PFF pandering and bullshit.

David:


I was a bit distressed to read your response on Dave Farber’s IP list  
to my re-posted blog regarding the blocking (or attempted prohibition  
of) VoIP use over Aircell’s in-flight broadband Internet service on  
American Airlines flights.  The piece was intended to be a fairly  
light-hearted means of raising a serious question:  has the FCC  
adequately articulated the standard by which it will judge the  
reasonableness of particular network management practices or has it  
introduced unacceptable uncertainty?  I had hoped by posting it merely  
to spark a lively debate over an important issue, and I hope that we  
can maintain that debate in a spirit of open and honest inquiry.


It is not evident to me after reading the FCC’s Comcast Order, how the  
agency intended the interplay of “disclosure” with its other standards  
-- that to be reasonable a practice must not impede or block access to  
lawful content or applications and that it must further a critically  
important interest in a narrowly or carefully tailored manner –to  
result in a judgment whether a particular network management practice  
is reasonable.  It is one thing to say that a lack of disclosure has  
compounded the harm of a practice that fails to meet the other  
standards, but that does not answer the further question that I have  
raised, which is whether a provider may lawfully block or impair  
access to an application under any circumstance if it discloses the  
lack of access or ability to use up front?


There are many situations where providers of Internet access block P2P  
applications (universities, colleges), block all P2P upstream and  
downstream traffic (wireless broadband providers) or limit their use  
(wi-fi service in Starbucks).  The question is why these practices are  
accepted as permissible, although on their face they appear quite  
inconsistent with the Internet policy principles, but other practices,  
such as Comcast’s, are not.  Brett Glass, operator of a wireless ISP,  
raised a host of serious questions about acceptable network management  
practices in an ex parte letter sent to the FCC during the “sunshine  
period” before the Commission adopted its Comcast Order.  See: http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520035996 
.  If the distinguishing factor of what is reasonable is advance and  
comprehensible disclosure, then in my opinion it would be preferable  
for the FCC to proceed via rulemaking to establish a rule of network  
management disclosure for broadband Internet service providers.  After  
reading the FCC’s Order, I couldn’t answer many, if any, of Brett’s  
questions and I believe the FCC would struggle to do so if the  
questions were presented in the form of either consumer complaints or  
requests for rulings by network operators.  Institutionally, it is not  
set up to handle these sorts of questions in “Internet time.”


You correctly observed that I am “cranky” about the FCC’s decision to  
set Internet policy via case-by-case adjudication, as I believe this  
to be a particularly unwise course of action.  But I am apoplectic  
about the manner in which the agency conducted this particular  
adjudication against a single broadband provider.  To paraphrase your  
posting:  this adjudication “smells.”  My last 2 ½ years at the FCC  
were spent in the Enforcement Bureau’s division that handles formal  
complaints against common carriers.  I have a fair idea of what a  
properly-conducted adjudication looks like, and frankly, this isn’t  
it.  I also learned while in EB what a fairly-conducted enforcement  
staff investigation of a formal or informal complaint against a common  
carrier or radio broadcast licensee looks like, and again, this  
resembled nothing like one.  My other 11 ½ years at the FCC were spent  
in several of the agency’s policy bureaus (Common Carrier, Wireless  
Telecommunications, Cable Services, Media), involved with conducting  
tariff and merger reviews and rulemakings.  The FCC’s quasi-judicial  
and quasi-legislative functions are governed by separate sets of  
statutory authorizations and procedural constraints designed to  
protect the integrity of the decision-making process, its results, and  
the public interest.  In this case, it is my opinion that the agency  
mixed and matched procedures in an unfair manner to achieve a  
particular result at a particular time, and that it did so using in  
reliance upon very shaky legal grounds.  And, yes, I get very cranky  
when the government fails to follow its own rules.


Finally, I don’t know that the Aircell matter is as simple as you have  
suggested -- that “there is no problem blocking use of telephony in  
the aircraft by merely enforcing a rule than bans telephone use in the  
aircraft.”  It appears that VoIP over an in-flight broadband Internet  
connection may not be covered by the FCC’s cell phone use  
prohibition.  According to the FCC’s website, agency rules prohibit  
the use of cellular phones using the 800 MHz frequency and other  
wireless devices on airborne aircraft.  This ban was put in place  
because of potential interference to wireless networks on the ground.   
In March 2007, the FCC terminated a proceeding that it began in late  
2004 to consider potentially lifting this ban.  The FCC determined  
that the technical information provided by interested parties in  
response to the proposal was insufficient to determine whether in- 
flight use of wireless devices on aircraft could cause harmful  
interference to wireless networks on the ground.  Therefore, it  
decided at the time to make no changes in the rules prohibiting in- 
flight use of such devices.  In addition to the FCC’s rules, the  
Federal Aviation Administration (FAA) prohibits in-flight use of  
wireless devices because of potential interference to the aircraft’s  
navigation and communication systems.  For this same reason the FAA  
also regulates the use of all portable electronic devices (PEDs), such  
as iPods and portable DVD players, during flight.  See http://www.fcc.gov/cgb/consumerfacts/cellonplanes.html 
.


Again, according to the FCC’s website, the agency has approved rules  
that allow in-flight voice and data services, including broadband  
services using dedicated air-to-ground frequencies that were  
previously used for seat-back telephone service.  It states that “air- 
to-ground service providers are in the process of rolling out new in- 
flight services, such as high-speed Internet access for laptop  
computers.  Because these services will operate in frequencies that  
are dedicated to air-to-ground communications and are separate from  
those used for wireless services on the ground, they do not pose an  
interference risk topwireless networks on the ground.”  The FCC  
directs that providers of in-flight wireless broadband and other  
communications services using the air-to-ground frequencies must  
coordinate with airlines and comply with any FAA rules in order to  
offer such services.  The FCC granted Aircell and certain  
participating cellular carriers limited waivers of Section 22.925 of  
its rules, to allow the use of AirCell equipment while airborne,  
subject to certain conditions.  The AirCell equipment, which includes  
a modified cellular mobile telephone and specially designed aircraft  
antenna, is designed to avoid causing significant interference to  
terrestrial cellular systems.  See: http://wireless.fcc.gov/services/index.htm?job=operations_1&id=cellular 
.  Accordingly, it appears that VoIP may be permissible under the  
FCC’s existing rules regarding the Aircell service and air-to-ground  
communications; the remaining question (aside from consistency with  
FAA requirements) is whether a disclosed prohibition on use of a VoIP  
application over in in-flight broadband connection would violate the  
agency’s Internet policy principles by impeding use of an application  
desired by a broadband subscriber.


In closing, I continue to be concerned that the FCC’s Comcast Order  
raises a host of issues concerning the broadband network management  
practices and that this uncertainty will have a deleterious effect on  
the ability of service providers to manage their networks and serve  
their customers.  I also believe that the costs of regulatory  
intervention will ultimately outweigh any gains in the effort to  
preserve the open nature of today’s Internet.  I hope that we can  
maintain a dialog on these and other important issues, without  
impugning each other’s motives.  These are important issues, and all  
points of view can make valuable contributions to the debate.  As  
advertised, The Progress & Freedom Foundation is a non-profit “market- 
oriented” think tank.  Unlike many similar organizations, PFF  
publishes the names of its supporters on its website to ensure  
transparency:  http://www.pff.org/about/supporters.html.  Among our  
supporters are companies that support the four “Internet freedoms”  
reflected in the FCC’s net neutrality principles, companies who have  
stated publicly that case-by-case adjudication is the best means of  
addressing potential net neutrality violations, companies opposed to  
ad hoc adjudication, and companies opposed to government intervention  
of any kind in this area for any number of reasons.  Our supporters  
may vary in their views of the desirability of proceeding by  
establishing ex ante rules of operator behavior either under the FCC’s  
current authority or by legislatively granting the FCC the statutory  
authority to adopt such rules and adjudicate complaints.  PFF remains  
an independent foundation, and the views I express as one of its  
Senior Fellows are my own.


Regards,



Barbara Esbin

Senior Fellow

The Progress & Freedom Foundation

Sept. 17, 2008

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