Saturday, September 02, 2006

Not just college football starting up

In the fall, the new term of the U.S. Supreme Court begins.

This year's Supreme Court preview of the Institute of Bill of Rights Law, set for September 15-16, is once again full of famous Supreme Court watchers, including those made famous by the blogosphere.

The participants:

Randy E. Barnett - Georgetown University Law Center
Joan Biskupic - USA Today
Beth Brinkmann - Morrison and Foerster
Michael Carvin - Jones Day
Erwin Chemerinsky - Duke University Law School
Walter Dellinger - O’Melveny & Meyers, Duke University Law School
John Duffy - George Washington Law School
Lyle Denniston - SCOTUSblog
Tom Goldstein - Akin Gump
Linda Greenhouse - The New York Times
Pam Karlan - Stanford Law School
Neal Katyal - Georgetown Law Center
Charles Lane - Washington Post
Richard Lazarus - Georgetown University Law Center
Dahlia Lithwick - Slate
Maureen Mahoney - Latham & Watkins
Alan Meese - William & Mary School of Law
Carter Phillips - Sidley & Austin
David Savage - Los Angeles Times
Jay Sekulow - American Center for Law and Justice
Paul Smith - Jenner & Block
William Van Alstyne - William & Mary School of Law
Amy Wax - University of Pennsylvania Law School
Stephen Wermiel - Washington School of Law, American University
John Yoo - University of California — Berkeley

Those attending this event can stick around and watch "the Tribe" (or whatever they may call themselves by that time) take on Maine that same weekend.

The odyssey

The Virginia State Bar Disciplinary Board suspended Timothy Martin Barrett's license to practice law for three years, effective July 23, 2004. According to the Bar's website, "The board found that Mr. Barrett, while representing himself in his divorce, violated ethics rules when he filed frivolous pleadings, threatened opposing counsel with disciplinary charges solely to gain an advantage, and communicated improperly with a judge and the opposing party. Mr. Barrett also violated ethics rules by twice being found in contempt of court for failing to pay spousal and child support." In the Matter of Timothy Martin Barrett, Nos. 02-022-1069 and 02-022-170, Order of August 10, 2004. The Virginia Supreme Court stayed the suspension pending appeal.

On April 22, 2005, the Virginia Supreme Court reversed the decision in part and remanded the matter to the Disciplinary Board for reconsideration. No. 042336, Opinion of April 22, 2005.

On April 26, 2005, a panel of the Court of Appeals affirmed in part and reversed in part in the case of Timothy Martin Barrett v. Valerie Jill Rhudy Barrett, Record No. 1123-04-1. Opinion of April 26, 2005.

On September 2, 2005 the Disciplinary Board suspended Mr. Barrett's license for 27 months effective September 2, 2005. Order of September 14, 2005. The Virginia Supreme Court stayed the suspension pending appeal.

On October 12, 2005, a three-judge panel entered an order suspending the license of Timothy M. Barrett, for a period of thirty months, effective November 1, 2005. Case No. CH05001488-00, Order of October 12, 2005 (Circuit Court of Virginia Beach). The Virginia Supreme Court stayed the suspension pending appeal.

On November 15, 2005, a panel of the Court of Appeals affirmed in part and reversed in part in the case of Timothy Martin Barrett v. Valerie Jill Rhudy Barrett, Record No. 0992-05-3. Opinion of November 15, 2005. A petition for rehearing was denied.

On February 3, 2006, the Supreme Court received a petition for appeal in the case of Timothy Martin Barrett v. Virginia State Bar, No. 060248.

On April 21, 2006, the Virginia Supreme Court affirmed the decision of the Disciplinary Board. No. 052284 (unpublished).

On September 13, 2006, a panel of the Court of Appeals will hear argument in the case of Timothy Martin Barrett v. Valerie Jill Rhudy Barrett, No. 0902-06-3.

Friday, September 01, 2006

Worst SI cover jinx ever

The Richmond paper reported here that U.Va. is going up against the ghosts of the Pitt Panther team that won it all in 1976, which will be honored at Saturday night's game in Pittsburgh.

Mention of the 1976 team makes me think of the Sports Illustrated cover shown below, which inexplicably shows visitors from the Planet of the Apes on the Pitt sideline.

A W.D. Va. court order that makes me kind of sniffly

Judge Williams of the W.D. Va. has signed an order referring all pre-trial matters to Magistrate Judge Sargent.

I guess there was some similar order in place for many years in Charlottesville, referring pre-trial matters to Magistrate Judge Crigler, during Judge Michael's time.

Thursday, August 31, 2006

Is George Mason University brainwashing the nation's judges?

It says here that the proprietors of law seminars given to judges by GMU Law deny any attempts to exercise mind control over the members of the judiciary who attend their continuing education events.

To me, this sounds like some kind of GMU Law marketing ploy. They probably send out brochures to judges' offices throughout America, saying "what happens in Fairfax, stays in Fairfax."

Bad reading

Via the VTLA list serv, I read this obituary of a Virginia lawyer of about my own age, from the class behind me at William & Mary:

WILLIAMSBURG - Kenneth Leon Roberts of Williamsburg, Va., died Sunday, July 16, 2006, after a sudden illness in Madrid, Spain. Ken is survived by his wife, Patricia (Erikson); his children, William (9) and Megan (6); his parents, John and Helene of Owosso, Mich.; his siblings, Stephen (Susan) of Bloomfield, Mich., Anne Masters (Michael) of Charlotte, N.C., John (Gina) of Denver, Colo., and Jo Ellen Hrcka (D.J.) of Owosso, Mich.; grandmother, Patricia Erikson; father-in-law, James Erikson; mother-in-law, Susan Lynch; sister-in-law, Dawn Erikson Amor; brother-in-law, David Amor; and 13 nieces and nephews. He was also deeply loved by many additional aunts and uncles and cousins. Ken was born in Parma, Ohio, on July 1, 1965, and moved with his family from Middleburg Heights, Ohio, to Owosso, Mich., in 1974. He attended St. Paul's Catholic School and graduated from Owosso High School in 1983. Ken attended Western Michigan University's Honors Program and graduated in 1987. That fall he began law school at William & Mary in Williamsburg, Va., where he met Patricia during his third year. Ken received his law degree in 1990 and soon after started his own successful law practice. He and Patricia were married in 1993. Ken was a gift to all who knew and loved him. He was a passionate, devoted husband and Patty's best friend. He was an extraordinary father who loved to play with and nurture Billy and Megan. He was so very proud and thankful for the blessings of his children. His exceptional compassion, immeasurable generosity, and concern for and kindness to others was inspirational. He loved life and always said he enjoyed living large. Ken had a kind word and helping hand for everyone he met, was an attentive listener and always had the ability to make people laugh.

Judge Turk's sentencing in Hutcherson case catches the eye of Professor Berman

Professor Berman notes here that Judge Turk of the W.D. Va. made a considerable downward departure from the Sentencing Guidelines in the case of the former mayor of Lynchburg, who got no jail time.

Does the Virginia retraction statute apply to bloggers?

As yet another follow-up to Martinsville, here's a blogger liability question - does Va. Code § 8.01-48 apply to blogs and bloggers?

Section 8.01-48 says this:

" In any civil action against the publisher, owner, editor, reporter or employee of any newspaper, magazine or periodical under § 8.01-45, or for libel or defamation, because of any article, statement or other matter contained in any such newspaper, magazine or periodical, the defendant, whether punitive damages be sought or not, may introduce in evidence in mitigation of general and punitive damages, or either, but not of actual pecuniary damages, all the circumstances of the publication, including the source of the information, its character as affording reasonable ground of reliance, any prior publication elsewhere of similar purport, the lack of negligence or malice on the part of the defendant, the good faith of the defendant in such publication, or that apology or retraction, if any, was made with reasonable promptness and fairness; provided that the defendant may introduce in evidence only such circumstances and to the extent set forth in his or its grounds of defense."

If the answer is "no," perhaps the statute should be amended, to be brought forward into the Modern Age of New Media.

On the Virginia open primary case

In Miller v. Brown, the Fourth Circuit in an opinion by District Judge Goodwin reversed the District Court's dismissal for lack of standing and lack of ripeness in the case challenging Virginia's open primary statute, Va. Code § 24.2-530, which says simply: " All persons qualified to vote, pursuant to §§ 24.2-400 through 24.2-403, may vote at the primary. No person shall vote for the candidates of more than one party."

The plaintiffs sent some kind of notice to the State Board of Elections about how they want their primary in 2007, then filed suit to challenge the statute. The Court agreed that 2007 is not so far away as to make the case non-justiciable: "Knowing that voters wholly unaffiliated with the plaintiffs’ party will participate in their primary dramatically changes the plaintiffs’ decisions about campaign financing, messages to stress, and candidates to recruit. Because campaign planning decisions have to be made months, or even years, in advance of the election to be effective, the plaintiffs’ alleged injuries are actual and threatened."

For reasons I've forgotten, the Jaded JD is the expert on this case, knows it inside and out, predicted the outcome of the appeal, and has this preliminary post on what the appeals court decision does not mean.

One thing that occurred me just now, as I was writing a note to the Jaded JD, is that if the case is appealed again, normally the same panel would get the case, but would that be true with a District Judge on the panel? I don't know the answer. Judge Goodwin certainly is able to articulate the plaintiff's arguments, whether or not he agrees with them.

Wednesday, August 30, 2006

First, Martinsville, then on to Westminster

As I am still reading the posts about last weekend, I see here that the Blue Dog named the segment on Net Neutrality as "best in show."

What few comments I received from him and others were all to the good. At the time, the main reaction I noticed from the audience was John Brownlee laughing.

While at the Blogs United event, I heard about Judge Urbanski's decision in the Martinsville Cable case, but didn't get around to reading it before yesterday. I'd say that the Virginia legislature should not wait for the upcoming federal law changes, whatever they may be, and insulate its citizens (or some of them) today from the perils of net discrimination, while allowing municipalities to make some money in the process, by amending the laws cited by Judge Urbanski so that localities (besides Bristol) can provide telephone, video, and cable television.

Monday, August 28, 2006

The Martinsville blog conference, with photos

Cathouse Chat has this review with her pictures from this weekend's conference.

Her t-shirt on Saturday did say: "I'm blogging this."

Hmm, we made the Blawg Review

Ernie has linked to the serialized Net Neutrality posts on his blog as this week's Blawg Review host. That's good, I think.

Sunday, August 27, 2006

Two Fourth Circuit free exercise cases

This Findlaw article contrasts two opinions by the Fourth Circuit on the subject of the free exercise of religion.

It begins:

"Two doctrines involving religious speech have proved to be on a collision course, in two recent decisions of the United States Court of Appeals for the Fourth Circuit. The question for the Fourth Circuit is what "equality" in the free exercise cases really means.

In April of 2005, the Fourth Circuit held, in Simpson v. Chesterfield County Board of Supervisors, that local government can intentionally and publicly discriminate against minority religious denominations. But this month, the Fourth Circuit held in Child Evangelism Fellowship v. Montgomery County Public Schools, that a public school's refusal to permit Christian evangelistic literature in its take-home flyer program was potentially viewpoint discrimination, and, therefore, unconstitutional.

In this column, I'll explain why the two decisions cannot be reconciled, and put them in the larger contexts of Supreme Court precedent and the Christian evangelical "equality" movement."

Haynes and Boyle nominations returned to the White House, whatever that means

In some kind of procedural maneuver the significance of which escapes me, the United States Senate has "returned" to the White House the nominations of Judge Boyle and William Haynes to the Fourth Circuit, among others. Presumably, the White House will resubmit their nominations in due course.

Articles on this subject: here (from the Raleigh paper), here (from the Columbia paper), here (from the Richmond paper).

In other nomination news I somehow missed earlier this month, President Bush nominated Liam O'Grady for Judge Hilton's seat on the U.S. District Court for the Eastern District of Virginia. Judge O'Grady has served as magistrate judge in Alexandria since 2003. He is a George Mason law graduate.

Net neutrality, part eight

8. conclusions

8.1. network providers may have the political power to win in the short run, whether they are right or wrong

8.2. "trust but verify" - technology and consumers will detect "bad" discrimination, even if nothing can be done about it - Cory Doctorow

8.3. real competition would kill off "bad" discrimination - Fractals of Change, Balkin

8.4. lawyers and lobbyists will continue to get rich - Ars Technica, Ecommercetimes

Net neutrality, part seven

7. on doing something else

7.1. fix the anti-trust laws

7.1.1. "Relatively minor amendments to our Nation’s antitrust laws could be the right approach in this area." - Congressman Bob Goodlatte

7.1.2. Sensenbrenner bill - HR 5417 - "Internet Freedom and Nondiscrimination Act of 2006" - House Report 109-541 (69 pages of legislative history) - amends the Clayton Act to apply anti-trust laws to network discrimination "Advocates of net neutrality emphasize that meaningful remedies for network neutrality violators are necessary to preserve competition and consumer choice." passed House Judiciary committee, 20-13, with 13 Republicans opposed - May 2006 "This two-pronged approach has been dubbed "strict" 'Net neutrality by some, inasmuch as it not only outlaws service degradation, but would also prevent service providers from selling Quality of Service (QoS) to consumers." - 5/25/06 – Ars Technica "our bill would amend the Clayton Act - a seminal antitrust law - to make it a violation of the antitrust laws if a company, among other things, blocks, impairs, discriminates against or interferes with the ability of any person to access, use, send receive or offer legal content or applications. Such conduct would result in treble damages against the offender." - Congressman John Conyers

7.2. alternative connections

7.2.1. the future nationwide Google network

7.2.2. municipal networks - "The obvious answer is for regular folks like you and me to own our own last mile Internet connection.... The effect of this move would be beyond amazing. It would be astounding. No more arguments about Net Neutrality, for one thing, because we'd effectively be extending our ownership and control of the wires all the way to the ISP interconnect. Of course you'd still have to buy Internet service, but at NerdTV rates the amount of bandwidth used by a median U.S. broadband customer would be less than $2.00 per month. Though with that GREAT BIG PIPE most of us would be tempted to use a lot more bandwidth, which is exactly the point. There would be a community-financed Internet revolution and this time, because it would be locally funded and managed, very little money would be stolen. Dark fibers would be lighting up all over America, telco capital costs would plummet, and a truly competitive market for Internet services would emerge. In 2-3 years whatever bandwidth advantage countries like Korea have would be erased and we'd be back on track building even more innovative online industries." -

7.2.3. wireless broadband - WiMax mesh wireless - economics of the "wireless last mile"

7.2.4. confiscate the private networks by eminent domain

7.3. turn the tables, who needs who?

7.3.1. the ESPN 360 case who really has the bargaining power? content providers or network providers "Want ESPN360? Have Comcast Internet? Forget it. Comcast hasn't paid for this service. Don't worry, the good folks at ESPN have been kind enough to give you a list of the preferred providers: Frontier, US Cable, Verizon, BELD, Charter LA, Charter Stl, Grande, Mediacom, MidHudson, SMU, StarStream, MTC, Iowa Network, Services, Conway, and Liberty PR. You might be (justifiably) tempted to say, "To hell with this. I'm not choosing an ISP just for ESPN360." While that's certainly a reasonable thought -- especially if you're not the type of person who starts to twitch without his / her daily fix of PTI -- that's much easier to do when it's just one content-provider. However, what happens if more and more companies start doing this? "Wait, isn't this the net neutrality issue?" you ask. No. In fact, in a lot of ways it's the exact opposite. Unlike the issue of net neutrality which primarily deals with matters of QoS (quality of service) or filtering by the ISP, the precedent being set by ESPN is the right/ability of the content providers to force ISPs to pay usage fees on behalf of the ISP's customers. So, instead of an ISP charging companies such as YouTube, Amazon, or whomever to ostensibly recoup the last-mile costs, it's the content companies saying, "our content is so important that you need to pay us for it." - Engadget

7.3.2. "Given the market power that Google has today, they are more relevant to the Internet community than BellSouth. Given that, if I were running Google today, I would choose to implement a BellSouth Boycott and stop offering access to Google to BellSouth customers and would start advertising Cox Cable service on any requests that came from BellSouth customers in their regions. I’m willing to wager that by Q3 2006, BellSouth’s DSL group will feel the effects of their grave error in judgment." - Pulverblog

7.3.3. "We think that content providers should respond by blocking the RBOCs." - Alex Goldman, ISP-Planet

Net neutrality, part six

6. on doing something

6.1. "if it ain't broke, don't fix it" - neutrality made the internet what it is today

6.2. net neutrality is good for consumers

6.2.1. there are worse things than higher prices "I believe that it's better to have consumers pay more for service than to have AT&T picking and choosing winners on the network. Both are a cost to the economy, but the latter is a double cost. It creates costs that are passed on to consumers anyhow, and it also distorts competition between eBay, Yahoo!, and the like. Building networks at the expense of network applications has a logic O. Henry would enjoy, for it's akin to selling a painting in order to buy a better frame." - Tim Wu

6.2.2. network providers want to promote their own services and make the competition pay network providers want to charge somebody, and can't be sure that consumers will want to buy their in-house content and services "Having literally sunk their billion-dollar investments in the ground, the telecoms firms will need to get a decent return on them. But in their nightmare scenario, customers may simply sign up to their huge bandwidth and then use it not to buy the services touted by the telecoms firms but instead to obtain independent or web-based services, such as Skype for making calls or (when the service is launched) Netflix for downloading movies. Can the telecoms firms do anything to stop that? Stoyan Kenderov, an IPTV expert at Amdocs, a firm that makes back-office software for telecoms companies, says that the telecoms firms are building into their residential gateways new technology that will inspect the packets of zeros and ones passing through. This will let them identify traffic from third-party rivals, which might then end up at the back of the queue and thus be slow and patchy. The only hint that users might have of that going on, says Mr Kenderov, would be some very fine print on their bills explaining, in turgid legalese, that the provider guarantees the quality of its own services only." - The Economist, Jul 28th 2005, "Large phone companies are seeking payments from Internet companies for high-quality delivery of music, movies and other content that will move over their telecommunications networks, according to a published report." - CNN "How do you think they're going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes? The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! (YHOO ) or Vonage or anybody to expect to use these pipes [for] free is nuts!" - Ed Whitacre, CEO of SBC, quoted in Businessweek, November 7, 2005 - "Internet companies said Whitacre was stating what they have long feared -- that SBC and others may manage their networks to choke off access to Web sites or to target competing firms such as Vonage Holdings Corp. and Skype Technologies SA, which provide Internet-based phone services." - Washington Post "I think the content providers should be paying for the use of the network - obviously not the piece from the customer to the network, which has already been paid for by the customer in Internet access fees - but for accessing the so-called Internet cloud.. . . If someone wants to transmit a high quality service with no interruptions and guaranteed this, guaranteed that, they should be willing to pay for that," the AT&T chief said. "Now they might pass it on to their customers who are looking at a movie, for example. But that ought to be a cost of doing business for them. They shouldn't get on [the network] and expect a free ride " Ed Whitacre, CEO of AT&T, quoted in Financial Times, January 2006 "There's no such thing as a free lunch on the Internet, according to Verizon CEO Ivan Seidenberg, who said Thursday that providers of bandwidth-intensive Internet applications, including Google and Microsoft, should "share the cost" of operating broadband networks." "But how can we believe any of this when AT&T's CEO refers to the paths for Internet access as ``his pipes'' and he vows to make some users pay for access to these pipes? That sounds very clear to me and I find some agreement with one Internet expert who referred to this as the ``Tony Soprano business model.'' . . . the lack of net neutrality allows for the distinct possibility that the phone and cable companies could block or slow the sites and services of their competitors. I don't see in the phone and cable companies the kind of wide open competition that is present today on the Internet. And given that lack of competition in the phone and cable industries, I question the commitment to competition of its players and what that means for consumers under the provisions of this bill. " - Congressman Lois Capps Senator Wyden's bill "will assure that a company like Comcast that offers Internet access does not give preferential treatment to its own information bits compared to information bits from another company, like Yahoo." - Senator Wyden VoIP is particularly vulnerable to discrimination "Evidence of anti-competitive behavior is thin so far, but in March [2005] the FCC fined a small North Carolina telecom carrier for blocking Voice over IP (define) calls delivered by competitors to the telecom's own VoIP service. Madison River Communications of Mebane, N.C., which owns and operates four rural telephone companies in Georgia, Alabama, North Carolina and Illinois, admitted no guilt but agreed to pay a $15,000 fine and promised to drop the practice. "This is the single-largest problem VoIP will face. It's critical not only to our survival but for all next-generation IP services," Jason Talley, CEO of VoIP provider Nuvio, told at the time. "Port blocking is easy to point out, but the other stuff [degrading the VoIP signal] is harder to prove." - Wifiplanet

6.3. let the marketplace not the telcos decide the winners

6.4. neutrality protects innovation

6.4.1. "what would happen if discrimination reigned on the Internet: a transformation from a market where innovation rules to one where deal-making rules. Or, a market where firms rush to make exclusive agreements with AT&T and Verizon instead of trying to improve their products." - Tim Wu

6.4.2. "Broadband providers are planning a two-lane Internet with a fast lane for their content and for the content of those who pay, and a slow lane for everyone else. Start-ups cannot afford the fast lane fees, and in the slow lane they cannot succeed. Innovation is at risk." Rick Boucher

6.4.3. "America's small businesses and entrepreneurs could be left in the slow lane with inferior Internet service, unable to compete with the big corporations that can pay Internet providers toll charges to be in the fast lane." - Nancy Pelosi

6.4.4. "But it is precisely this unbridled freedom on the Internet that has also brought us innovation on an almost unimaginable scale over the last decade or so. The explosive growth of everything from web-based businesses to politically-based sites to newsgathering sources has been nothing short of amazing. . . . First, it means that small players on the Internet will find it harder to use the world wide reach of the Internet to bring their new ideas to market. The danger is not to Google, but to the next potential Google. That new idea that might upend Google or MySpace won't get very far if it can't match the reach of those behemoths. The inability to pay phone and cable company fees for the ``fast lane'' will keep new ideas out of the market." - Congressman Lois Capps

6.5. the network companies are stupid and evil

6.5.1. the telcos are just plain jealous of the successful internet companies and want to get back at them: "What's really going on is the CEOs of Verizon, AT&T, Bell South and the other Telcos are looking at their margins going down month after month while the service providers like Apple and Google, who deliver their services to consumers over the Telco's networks, are watching their margins go up and up."

6.5.2. "how the telcos were granted all sorts of subsidies and benefits in exchange for promising to delivering high speed fiber to our homes -- something they've still never done." - Techdirt

6.5.3. “I look at what the phone company does and do the opposite.” Craig Newmark, Founder of Craigslist

6.5.4. ""We're the phone company. We don't care because we don't have to." Lily Tomlin, comedienne

6.6. network providers are already getting rich

6.6.1. "In the Internet world, both ends essentially pay for access to the Internet system, and so the providers of access get compensated by the users at each end . . . My big concern is that suddenly access providers want to step in the middle and create a toll road to limit customers' ability to get access to services of their choice even though they have paid for access to the network in the first place." Vint Cerf, quoted in Washington Post, 2/7/06,

6.6.2. "Another reaction is that "I'm already paying (a lot) for Internet access, and I don't want them to decrease my services." I suspect that if the ISPs are able to discriminate among content providers, then they will slip this provision into the consumer's terms of service, and most users won't even notice that their service has been decreased. Perhaps charging content providers would be reasonable if the company provided a free Internet connection to consumers -- but adding this discriminatory power to the current ISP system provides too much opportunity for unfair exploitation." - FreedomDemocrats

6.7. discrimination might not be so bad if consumers had a choice

6.7.1. "Consumers have little choice when it comes to high speed Internet. If they had more choices of providers, this wouldn't be such a dangerous situation." Paul Misener, Amazon

6.8. neutrality is good for free speech

6.8.1. "Network neutrality (and, before it, open access) are the best way to implement the goals of good information policy and democratic and free speech values." - Jack Balkin, Balkinization

6.8.2. "Bloggers, our citizen journalists, could be silenced by skyrocketing costs to post and share video and audio clips." - Nancy Pelosi

6.8.3. "A carrier could block access to a labor union site during a dispute. It could block access to a Web site after a special interest group makes a lot of noise about it. It could even block a political site to curry favor with the current administration. All that sounds far fetched, but the whole point is that there is nothing in place to stop carriers from doing it." - Paul Misener, Amazon

6.8.4. "Protection of free speech includes speech with which we disagree. If ISPs are allowed to become the gatekeepers of the Internet, everyone's speech is at risk." Caroline Fredrickson, ACLU

6.8.5. "Some advocacy groups, like the Christian Coalition and, worry that without explicit prohibitions in place, network owners could get away with blocking or degrading Web sites based on their religious or political content." Senator Demint

6.9. when discrimination becomes a problem, it will be too late for Congress to act

Net neutrality, part five

5. on doing nothing

5.1. "if it ain't broke, don't fix it" - lack of government regulation made the Internet what it is today

5.1.1. network discrimination is presently more theory than fact "absent clear evidence of market failure or consumer harm, policymakers should not enact blanket prohibitions of particular forms of business conduct or business models or place requirements on how business is conducted" - Federal Trade Commission Chairman Deborah Platt Majoras, August 21, 2006 "When we considered this bill in both the subcommittee and in the full committee, we asked experts to identify one example of a problem that this amendment would solve. They couldn't point to one example where a Bell-operated company or a cable company had blocked access to their networks or infringed on so-called Internet freedom." - Congressman Mike Ferguson "I look at it like, this amendment, if it was brought up 100 years ago, would have froze the Pony Express into that permanent state. But yet, we all know that later on developed first class mail, airplane, FedEx, UPS and a variety of different ways to deliver to the consumer. I say, let's wait until there is a discriminatory process that is put in place, that is anti-consumer and trying to guess that something that, we don't know what, may happen in the future. Let's not regulate the Internet today." - Congressman Lee Terry

5.2. net neutrality is bad for consumers

5.2.1. allowing discrimination takes the burden of cost off of consumers net neutrality "is a guarantee that the consumer will be the only one to finance the building, the maintenance and the improvement of the Internet highway." - Congressman Charles Gonzalez "The Markey amendment bans residential Internet providers from charging large Internet content providers for maintenance or upgrades based on how much bandwidth they are using. The Markey amendment means higher praises for the consumers, those of us who pay monthly, while large Internet content providers get a free ride over the portion of the Internet that is the most need for investment. Supporters claim the Internet companies pay for their network. The problem is, with television and video, it requires more bandwidth. They have got to make that investment. Are we going to put it on our constituents individually, or are the people who are making the money going to pay for it?" - Congressman Gene Green "The issue for the future is when websites offer high-bandwidth services like high-definition movies, television, and video games from websites, all over the Internet. To upgrade the ``last mile'' of broadband to accommodate these new services while keeping consumer prices low, telephone and cable companies may need to offer premium service to large Internet content companies. These applications require guaranteed high quality service, something that's not usually available on the Internet today. The Markey amendment bans this commercial arrangement and sends the whole bill to the consumers." - Congressman Gene Green "Now, the underlying purpose of this bill is to get the private entrepreneurs of this country to put the billions and billions and billions of dollars that are necessary to get the broadband deployment into the homes hopefully of every American home in this country, and then use that to unleash the creative entrepreneurship of our creative community to develop new services and new ways of providing those services so that all Americans can have access to some of these new services that are promised " - Congressman Joe Barton

5.3. let the marketplace not Congress decide the winners

5.4. net neutrality is bad for innovation

5.4.1. the internet is already congested and fast lanes are needed

5.4.2. new services require better quality of service "The key question is not whether network neutrality provides substantial benefits… the key regulatory question … [is] whether imposing network neutrality would forestall the realization of important economic benefits" VoIP is particularly vulnerable to QOS issues VoIP quality is dropping, net neutrality would make it worse

5.5. supporters of net neutrality are stupid and evil

5.6. network providers deserve to get rich like everyone else

5.6.1. net neutrality will thwart investment "If we want people and entrepreneurs and companies to invest the billions of dollars to get true broadband, then we cannot put restrictions on that in effect are price controls that give people access for free." Steve Forbes "If you don't allow companies to build out with a high probability of a reasonable return, shareholders will punish them for building out." John Chambers, CISCO - USAToday, 7/25/06

5.6.2. content-providers are getting rich "A Verizon Communications Inc. executive yesterday accused Google Inc. of freeloading for gaining access to people's homes using a network of lines and cables the phone company spent billions of dollars to build." Washington Post, 2/7/06 "Telco-cable companies have spent billions to lay down broadband pipe and want a return on their investment. They are tired of bandwidth hogs like Google, Amazon, and Microsoft getting a free ride. This was fine when the Internet consisted mostly of e-mail and static Web pages. With the advent of online video, Internet telephony, and IPTV, Verizon, AT&T, and BellSouth want content providers to share the cost. Their reasoning: If Google is going to introduce a video service, shouldn't it have to pay for some of the bandwidth it scarfs down?" - Slate

5.7. if the customer doesn't like it, he can choose something else

5.7.1. "Isn't there competition among pipeline owners? Just as a consumer of fast food can go to McDonald's if she wants a Coke and KFC if she wants a Pepsi (Wu's example), can't a consumer go to Comcast, say, rather than Verizon if Comcast offers more information and faster, to boot? If information really does want to be free and fast, won't ISPs have good reasons not to discriminate without being micro-managed and "planned" from above?" - Prawfsblawg

5.8. net neutrality is bad for free speech

5.9. government regulation is bad

5.9.1. who trusts Congress to get it right "Broad regulatory mandates that employ a ‘one size fits all’ philosophy, without regard to specific facts, always have unintended consequences, some of which may be harmful and some of which may not be known until far into the future" - Federal Trade Commission Chairman Deborah Platt Majoras, August 21, 2006 "If we go any further toward regulation of the Internet, we risk the grave consequences associated with legislating in the dark." - Senator Demint "It would force companies that build and maintain the networks where the data flows to present and categorize data in packets according to a government standard. Once we have done that, Mr. Chairman, the next thing is going to be having a Secretary of Internet access." - Congressman Marsha Blackburn "It imposes and establishes, secondly, a massive Federal regulation by mandating and dictating conditions on how the Internet will evolve without any consideration for technological advances and emerging business practices and models." - Congressman Charles Gonzalez "Most of us do not fully understand how the Internet works on a detailed basis or the financial arrangements that build our networks. The Internet has thrived without Congressional intervention on prices and commercial arrangements, and it will do so in the future." - Congressman Gene Green

5.9.2. who trusts the FCC to get it right "FCC arbitration of commercial disputes over Internet access may sound better in theory than it turns out to be in practice. There are some fairly close calls to make and when the pen hits the paper, you may not get the answer you are looking for, we may not see the issues the way you do, and you may be worse off than before." W. Kenneth Ferree, FCC, 6/27/03

5.10. technology will overcome discrimination anyway

Net neutrality, part four

4. what Congress has been doing and not doing

4.1. Barton bill - HR 5252 - The Communications Opportunity, Promotion, and Enhancement Bill (COPE)

4.1.1. COPE provisions - "The purpose of the Communications Opportunity, Promotion, and Enhancement Act of 2006 is to promote the deployment of broadband networks and services. The bill does so by: (1) creating a streamlined, pro-competitive national process under which companies can enter the cable service market with new, advanced networks capable of providing broadband video, voice, and data services; (2) authorizing the Federal Communications Commission (FCC or the Commission) to enforce its Broadband Policy Statement and the principles incorporated therein on a case-by-case basis so that consumers continue to have access to lawful content, applications, and services of their choosing that are available over the public Internet; (3) facilitating and requiring the provision of 911 and enhanced 911 (E911) services to consumers by Voice Over Internet Protocol (VOIP) providers; (4) ensuring that municipalities have the option to provide telecommunications, information, and cable services to their communities; (5) ensuring consumers have the option to purchase broadband services on a stand-alone basis; and (6) facilitating the development of multi-function, multi-platform wireless devices capable of offering a range of converging broadband services." House Report 109-470

4.1.2. Markey amendment - House Amendment 987 - rejected 152-269 amendment text - SEC. 715. NETWORK NEUTRALITY. (a) Policy- It is the policy of the United States--

(1) to maintain and enhance the vibrant and competitive free market that presently exists for the Internet and Internet services, upon which Internet commerce relies;

(2) to preserve and promote the open and interconnected nature of the Internet and consumer empowerment and choice;

(3) to foster innovation, investment, and competition among network providers, as well as application, content, and service providers;

(4) to ensure vigorous and prompt enforcement of this section's requirements to safeguard innovation, consumer protection, and marketplace certainty; and

(5) to preserve the security and reliability of the Internet and the services that enable consumers to access content, applications, and services over the Internet. (b) In General- Each broadband network provider has the duty--

(1) not to block, impair, degrade, discriminate against, or interfere with the ability of any person to use a broadband connection to access, use, send, receive, or offer lawful content, applications, or services over the Internet;

(2) to operate its broadband network in a nondiscriminatory manner so that any person can offer or provide content, applications, and services through, or over, such broadband network with equivalent or better capability than the provider extends to itself or affiliated parties, and without the imposition of a charge for such nondiscriminatory network operation;

(3) if the provider prioritizes or offers enhanced quality of service to data of a particular type, to prioritize or offer enhanced quality of service to all data of that type (regardless of the origin of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service;

(4) to enable a user to attach and use any device to the operator's network that does not physically damage, make unauthorized use of, or materially degrade other users' utilization of, the network; and

(5) to clearly and conspicuously disclose to users, in plain language, accurate information about the speed, nature, and limitations of their broadband connection. (c) Preserved Rights and Exceptions- Nothing in this section shall prevent a broadband network provider from taking reasonable and nondiscriminatory measures to--

(1) manage the functioning of its network to protect the security of such network and broadband network services, provided that such management does not depend upon the affiliation with the broadband network provider of the content, applications, or services on the network;

(2) offer varied service plans to users at defined levels of bandwidth and different prices;

(3) offer consumer protection services (including services for the prevention of unsolicited commercial electronic messages, parental controls, or other similar capabilities), or offer cable service, so long as a user may refuse or disable such services;

(4) give priority to emergency communications and telemedicine services; or

(5) prevent any violation of Federal or State law, or comply with any court-ordered law enforcement directive. how they voted on the amendment - yeas - Boucher, Moran, Scott, Wolf nays - Cantor, Jo Ann Davis, Drake, Forbes, Goode, Goodlatte

4.1.3. COPE passed the House on June 8, 2006

4.2. Markey bill - HR 5273 - "Network Neutrality Act of 2006’’ - voted down in committee

4.3. Stevens bill - S 2686 - Communications, Consumer's Choice, and Broadband Deployment Act of 2006

4.3.1. summary of other provisions Communications, Consumer's Choice, and Broadband Deployment Act of 2006 - Directs the Federal Communications Commission (FCC) to reduce the cost of calling home for U.S. military personnel stationed outside the United States in support of military operations, training exercises, or other approved purposes. Amends the Digital Television Transition and Public Safety Act of 2005 to direct the Assistant Secretary of Commerce for Communications and Information to allocate a portion of the funds available under such Act for: (1) making interoperable communications system equipment grants for equipment that can utilize reallocated public safety spectrum; and (2) establishing and implementing a strategic technology reserves initiative. Internet and Universal Service Act of 2006 - Requires each communications service provider to contribute to support universal service (the provision of communications service in rural, insular, and high-cost areas). Outlines requirements for distribution of universal service support to eligible communications carriers. Establishes a Broadband for Unserved Areas Account. Video Competition and Savings for Consumers Act of 2006 - Amends the Communications Act of 1934 to provide regulatory and franchising requirements for video services and video service providers similar to those currently applicable to cable communications operators. Requires the provision of channels for public, educational, and governmental use. Prohibits the denial of video service access because of income, race, or religion. Video Content Act - Sports Freedom Act of 2006 - Prohibits multichannel video programming distributors (MVPDs) from engaging in unfair or deceptive acts or practices to hinder or prevent other MVPDs from providing such programming or satellite broadcast programming to consumers. Digital Content Protection Act of 2006 - Directs the FCC to implement its Report and Order in the matters of: (1) Digital Broadcast Content Protection; and (2) Digital Output Protection Technology and Recording Method Certifications. Authorizes the FCC to promulgate regulations governing the indiscriminate redistribution of audio content with respect to digital and satellite radio broadcasts. Requires the FCC to establish the Digital Audio Review Board. Community Broadband Act - Amends the Telecommunications Act of 1996 to prohibit any state or local government statute, regulation, or other legal requirement from prohibiting any public provider from providing, to any person or any public or private entity, advanced communications capability or any service that utilizes the advanced communications capability provided by such provider. Provides safeguards, including that a public provider may not provide advanced communications capability to the public unless the provision of such capability by that public provider is subject to the same laws and regulations that would apply if the advanced communications capability were being provided by a nongovernmental entity. Wireless Innovation Act of 2006 or WIN Act of 2006 - Makes eligible television spectrum available for wireless use. Outlines consumer education requirements for analog television receivers, as well as requirements to reduce the government cost of the converter box program. Outlines requirements for: (1) the protection of children with respect to the video transmission of child pornography; and (2) the free flow of information over the Internet.

4.3.2. FCC study and reporting requirement on net neutrality SEC. 901. NEUTRAL NETWORKS FOR CONSUMERS.

(a) IN GENERAL- Beginning 1 year after the date of enactment of this Act, the Federal Communications Commission shall report annually to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce for 5 years regarding--

(1) the developments in Internet traffic processing, routing, peering, transport, and interconnection;

(2) how such developments impact the free flow of information over the public Internet and the consumer experience using the public Internet;

(3) business relationships between broadband service providers and applications and online user services; and

(4) the development of and services available over public and private Internet offerings.

(b) DETERMINATIONS AND RECOMMENDATIONS- If the Commission determines that there are significant problems with any of the matters described in subsection (a) the Commission shall make such recommendations in its next annual report under subsection (a) as it deems necessary and appropriate to ensure that consumers can access lawful content and run Internet applications and services over the public Internet subject to the bandwidth purchased and the needs of law enforcement agencies. The Commission shall include recommendations for appropriate enforcement mechanisms but may not recommend additional rulemaking authority for the Commission.

4.3.3. Snowe-Dorgan amendment - S 2917 - would add some anti-discrimination provisions to Stevens bill

4.3.4. June 28, 2006 - Senate Commerce, Science, and Transportation committee hearing - "The Internet is not a truck" See the video on YouTube bill passes committee without substantive net neutrality provisions, Wyden threatens filibuster Allen and other Republicans on the committee (except Snowe) refused to vote for net neutrality

4.3.5. full Senate vote stalled as Stevens supposedly lacks the 60 votes for cloture

4.4. Wyden bill - S 2360 - "Internet Non-Discrimination Act of 2006" - referred to committee

Net neutrality, part three

3. what the FCC has been doing and not doing

3.1. "The Federal Communications Commission today adopted a policy statement that outlines four principles to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet: (1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and service providers, and content providers. Although the Commission did not adopt rules in this regard, it will incorporate these principles into its ongoing policymaking activities. All of these principles are subject to reasonable network management." - August 5, 2005 policy statement

3.2. some people blame primarily the FCC for the lack of competition, for deciding that broadband connections not subject to common carrier rules under the Telecommunications Act

3.2.1. "The reason we are having a fight over network neutrality now is that the government took a wrong turn about five or six years ago, and decided not to require open access by broadband providers." Jack Balkin

3.2.2. formerly, under the Telecommunications Act of 1996, the CLECs (competitive local exchange carriers) got to share elements of the RBOC's (regional bell operating companies) and the ILEC's (incumbent local exchange carriers) networks - 1996 Act requires sharing of "telecommunications" services but not "information" services, and at one time some happy optimistic people thought that the cable companies also would have to share their networks 1996 - we thought we were bad if we could connect to AOL at 14.4 k over the telephone, via a long-distance number

3.2.3. the FCC refused to classify the cable networks as providing "telecommunications" services subject to the sharing requirements, etc., of the 1996, so there never has been sharing of the cable networks, and the Ninth Circuit in 2003 and later the Supreme Court in June 2005 upheld this decision in the Brand X case (6-3 decision by Justice Thomas, with Scalia, Souter, and Ginsburg dissenting - talk about strange bedfellows)

3.2.4. after the Brand X decision, on the same day as their declaration of principles, the FCC reclassified DSL also as an "information service," with the effect of eliminating sharing of the telephone networks for DSL connections "Today, we decide that the appropriate framework for wireline broadband Internet access service, including its transmission component, is one that is eligible for a lighter regulatory touch." - FCC

3.2.5. now the CLECs and DLECs (data local exchange carriers) have largely gone the way of the Dodo, most sharing ended by 2005 supposedly, there are 168 CLECs approved by the State Corporation Commission as of 2005, down from 191 at end of 2003

3.3. FCC says broadband is 200k, up and down, and that broadband is available in 99% of U.S. as of July 2006 (summary); (report)

3.3.1. "This checkpoint marks the first time at least 99 percent of all US zip codes have access to at least one broadband service, leaving parts of Alaska, most of the Florida Everglades, and a huge chunk of Northern Maine in the digital backwaters for now" – Ars Technica there are places in Southwest Virginia (Rose Hill?) that have no DSL or cable, but then there are places in Southwest Virginia with no public water or sewer

3.3.2. GAO says FCC not measuring broadband fairly and accurately - May 2006

3.4. FCC commissioner Copps claims agency can act against network discrimination under existing law -

3.4.1. "The Federal Communications Commission has authority under current law to ensure that broadband-access providers -- currently mainly cable and phone companies -- do not discriminate against Web-based providers of content, search services and applications, FCC commissioner Michael Copps said Tuesday. Speaking to reporters, Copps stressed that it was essential for the agency to go beyond hortatory policy principles and adopt enforceable rules that guarantee network neutrality and shield Internet companies without wires into millions of homes from potential misconduct by companies that control those wires. “I think we have authority to go now to the second phase of network neutrality, to make sure that there's not discrimination against those that are not affiliated with the network owners,” Copps said in a press briefing held in his office here. FCC chairman Kevin Martin, however, has favored a deregulatory approach. Last August, he won agency adoption of nonbinding principles related to net neutrality, but he has not endorsed the need for specific agency rules that Copps wants."

3.4.2. "We need to...figure out, practically speaking, how do we ensure that there's not discrimination on the Internet." Copps interview