Verizon Wireless filed suit on Monday in the U.S. Court of the Appeals for the District of Columbia over the open access requirements built into the FCC's 700 MHz spectrum auction rules. The wireless carrier is seeking to strike down the last-minute inclusion of these requirements, arguing in its two-page petition (PDF of the paper filed) that the open access rules are "arbitrary, capricious, unsupported by substantial evidence and otherwise contrary to law."
That's all Verizon Wireless has to say, because the sole basis for a court to overturn a decision made by the Commission is if the agency acted in an arbitrary and capricious manner under the Adminstrative Procedures Act. The court won't (or isn't supposed to) weigh the policy merits of open access. All it will do is decide if the FCC arrived at its new rules by making a reasoned connection between the facts reviewed and the choices made.
Unfortunately for Google, the biggest proponent of the open access requirements, it's going to be hard to say that the FCC's open access requirements were based on any facts at all, at least in their final form. Remember how the rules were derived? FCC Chairman Kevin Martin floated an unofficial proposal (via USA Today no less), everybody scrambled, a circus ensued and a compromise, a clearly political compromise, was ultimately made.
Sure, the Commission can make a lot of arguments regarding how and why it made a rational decision (it did solicit comments on the question), but Verizon Wireless also has a very good argument to make that the FCC was basing its decision on something other than the facts. Moreover, from media ownership rules to indecency regulations, the courts haven't been kind to the FCC lately.
None of this, by the way, suggests that a Verizon Wireless win in the appeals court would be the right outcome. Clearly Google thinks the lawsuit stinks. Google lobbyist Chris Sacca says that "it's regrettable that Verizon has decided to use the court system to try to prevent consumers from having any choice of innovative services."
Verizon Wireless may also end up regretting this move. Although it can gain time to figure out new strategies for dealing with the open access issue, if it wins the appeal the court will likely send the new rules back to the FCC for further fine-tuning, bolstering the will and organization of pro-open access proponents in the process.
It doesn't help Verizon Wireless that most folks like the idea of being able to choose their own mobile handsets and applications. Verizon Wireless could wind up coping with even more unpalatable open access requirements.
Posted by Cynthia Brumfield at 11:15 PM | Print | Comments (0)
A report by the Computer and Communications Industry Association (CCIA) is generating a lot of buzz because it puts a value on the "fair use" exception to the copyright law, and that value is $4.5 trillion. Fair use allows people to reasonably excerpt or reproduce or otherwise use copyrighted material, assuming that the use of the material isn't wholesale reproduction or simply theft.
CCIA, a group backed by Silicon Valley powerhouses such as Microsoft, Google and Yahoo, among others, says that fair use amounts to $4.5 trillion in annual revenue in the U.S., representing one-sixth of the country's GDP.
Clearly the goal of the report is to counter the "studies" produced by big copyright holders, which argue that piracy of intellectual property costs billions and billions per year, or something to that effect. The MPAA, the RIAA and other proponents of stricter content control laws are not big fans of fair use, which they view as a loophole that needs to be narrowed because, they argue, so many new businesses leverage fair use at the expense of content creators.
Techdirt's Mike Masnick is a little exercised because he thinks this report is just as "bogus" as the countervailing studies. Welcome to Washington, a town where a lot of bogus stuff is flung around, and almost nobody believes the crapola that self-interested parties produce.
Even so, bogus reports are very important because they are incredibly useful in justifying particular courses of action. That's why the MPAA and the RIAA shovel their reports out the door -- to give policymakers something to cite when moving forward with legislation or new regulations.
Now that CCIA says that fair use is worth $4.5 trillion, foes of legislation or regulation backed by copyrightholders will have their own statistics and research to cite. Doesn't matter if the numbers are real or not. It just matters that the numbers exist.
Or as Mike puts it:
..if the copyright industry is going to keep publishing its bogus reports, it's hard to fault the CCIA for using the same methodology to show how much more important fair use is. The next time anyone cites the bogus piracy numbers, they should at least be forced to acknowledge these numbers on the value of fair use as well as a counterweight. They may be bogus, but they're equally bogus to the piracy numbers.Posted by Cynthia Brumfield at 3:41 PM | Print | Comments (0)
I'm proud to announce we've just landed our second keynote speaker for The New Video Summit, a great one-day conference slated for October 29 in Boston. Herb Scannell, former Vice Chairman of MTV Networks and now CEO of innovative online video start-up Next New Networks, joins Tivo CEO Tom Rogers as a keynote speaker at this event, which leads into Jeff Pulver's Video-on-the-Net show.
This is the second time I've run this event -- the first time was last March in San Jose. As was true of the first New Video Summit, we've lined up some great speakers for the upcoming fall conference. Aside from the first-rate keynote discussions, the New Video Summit will feature a group of people who are on the edge of this whole new video-over-the-web thing, including:
I try to avoid using my blog posts here to plug stuff, but this really is shaping up to be a great event. Plus -- an early bird discount worth hundreds of dollars is expiring tomorrow and if anybody is planning to attend Video-on-the-Net, VON or The New Video Summit, better sign up now to save the bucks.
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