REx3: Reform, Reinvent, Review

Wow. That's ..... Really Fast.

2010-02-10T20:35:00.005-05:00

I agree with Professor Crawford: Google's announcement that it will "build and test ultra high-speed broadband networks" is very exciting. It has all sorts of implications, both technological and in the general commercial-legal landscape.

The technological possibilities are awesome. Gigabit Internet. Most internal networks aren't even that fast. Streaming 1080p (or more) video is only the beginning. Streaming 3D or panoramic video. Digital content distribution the norm, rather than the exception. Telepresence in your living room. Online gaming with environments so immersive you'll need a whole wall of screens.

The legal implications are more subtle. Google will be researching technological and economic models that the current menu of carriers simply ignore. This will open up options of legal action that the government has considered off the table. Think about the following (or don't -- but if you don't, why are you reading this blog?):

The carriers are a silent cartel. They don't appear to get together and agree on price fixing, but does that mean they don't have tacit agreements in place? Ever wonder why access to AT&T's puny, underdeveloped data network costs the same amount as Verizon's sprawling one or Sprint's technologically superior one? There's technological competition, but no economic competition. Heck, in many places carriers have a literal regional monopoly that the others refuse to disturb.
The carriers lie to us. All the time. They tell us that 16 Mbps is a great speed on fiber, while the Europeans get 24 on copper. They tell us that rolling out access costs so much, and we're forced to believe them. And they repeat these lies to the FCC. Well, Google is about to expose the real numbers.
With the Comcast - NBC deal, we're seeing an unprecedented push by a carrier into the content world. When a carrier owns content, it is incentivized to find ways to restrict access to that content, which it can easily do. But Google's experiment could put the lie to the reasons carriers give for restricting access.

We could be seeing increased government action on carrier pricing, net neutrality, and FCC enforcement than we ever have.

Please don't play Forcier, Coach

2009-10-15T22:12:00.001-04:00

The Michigan Wolverines (Go Blue!) listed true freshman quarterback Tate Forcier as 'probable' for this Saturday's game against Delaware State. He shouldn't play.

Forcier suffered what is being referred to as a "mild concussion" in last week's game at Iowa. Forcier apparently reported headaches at least as recently as Monday, but practiced Wednesday. Coach Rich Rodriguez appears to be taking a page from Florida Gators coach Urban Meyer. Meyer played Tebow seven days after he was knocked out cold at Kentucky and was carted vomiting out of the stadium.

A concussion is bleeding in or around the brain. That's "bleeding" and "brain" in the same sentence. The Mayo Clinic has the following to say about concussions:

No one should return to play or vigorous activity while signs or symptoms of a concussion are present. If signs or symptoms lasted 15 minutes or longer or included loss of consciousness or amnesia, it's not safe to return to play for at least one week. [Emphasis added]

Forcier was symptomatic for at least two days. That's a lot longer than 15 minutes. He shouldn't play for at least a week. Now, I'm a law student and not a math student, but I'm pretty sure there are fewer than seven days between Monday (if that even was his last day of symptoms) and Saturday.

Forcier is probably fine. Tebow was probably not fine, and playing him was clearly over the line. Forcier is a borderline case. But he is also a 19-year-old kid pretty much without recourse when coaches make bad decisions. Unlike the pros, college players have no leverage with their coaches, and have to play if ordered to -- they can be cut simply at the discretion of the coach. That could easily mean the end of a career. And it's highly unlikely that Forcier will tell Rodriguez he's not ready to go if he thinks he might be able to. 19-year-olds are not known for being particularly careful with their own bodies.

The Wolverines shouldn't need Forcier this week. They play Delaware State, whose only win this year is over Hampton. What, you haven't heard of the Hampton Pirates? Exactly. Don't get me wrong -- I love to watch Forcier play. Rare is the true freshman who achieves a passer rating of over 186 in his first game. (Granted, it was against Western Michigan, but still -- 186.) He's carried a passer rating of over 133 through 5 games, including games against Notre Dame, Michigan State, and Iowa. The kid's great, and he's fun to watch.

But he's a kid. A kid who hurt his brain.

Rodriguez would do well to remember that, while Pleasure Ridge Park High coach David Jason Stinson was acquitted on charges of reckless homicide and wanton endangerment in the death of Max Gilpin, he's still facing a wrongful death suit from Gilpin's family. Any first-year law student can tell you that the standard of proof in that trial will be a lot lower, and that Stinson could easily lose.

I want Forcier to be okay. And I want to watch him play. And I want him to have a long, lucrative career. And I don't want Rich Rodriguez to do anything stupid that could endanger a young kid. I don't care if Rodriguez faces a tort suit, honestly, but he probably does.

What does "carry" mean? Don't ask AT&T. ... Or Google. ... Or the FCC.

2009-10-14T21:45:00.005-04:00

Google has posted no less than twice on their Public Policy Blog in response to AT&T's letter to the Federal Communications Commission.

For those of you who don't know, AT&T claims that Google's access policy violates FCC regulations on carriers. Google refuses to connect outgoing Google Voice calls to certain local telephone operators in rural areas. AT&T is required to connect to these carriers, and it thinks Google should be too.

Google justifies its refusal to connect to the carriers in its October 9th post:

Not only do they charge exorbitant termination rates for calls, but they also partner with adult sex chat lines and "free" conference calling centers to drive high volumes of traffic. This practice has been called "access stimulation" or "traffic pumping" (clearly by someone with a sense of humor).

AT&T is tossing around the term "net neutrality", which Google has famously used in the past to insist that its services be allowed on various networks. Google has responded with some touchy-feely business about how it wants to keep Google Voice free "for, among others, soldiers and the homeless". The FCC has apparently asked Google for more information on its policies.

Unfortunately, it appears that all of the parties involved -- Google, AT&T, and the FCC -- utterly fail to understand the law. "Net neutrality", in its current form, is not about Internet ideals or principles of freedom. The FCC's net neutrality regulations extend the law of common carriers to Internet Service Providers. The law of common carriers is a common law doctrine that requires certain vendors to provide their services to all members of the public without discrimination. Railroads, parcel services, and, since 1934 (the year of the Communications Act), telephone networks are common carriers. They cannot refuse to take certain people, packages, or calls to places they serve, so long as the people pay the fee.

The FCC's broadband policy of 2005 essentially treats broadband providers as common carriers. The principle, broadly stated, is "any lawful content, any lawful application, any lawful device, any provider". Your ISP cannot refuse to serve you a website or disable the use of an Internet application just because it doesn't like it. (Current Chairman Julius Genachowski wants these principles to apply to wireless networks, but this hasn't happened yet.)

If you've followed this far, it should be pretty obvious what the necessary outcome of this case is: Google is in no way required to complete calls to carriers it feels threaten its service model. Google Voice is not subject to the law of common carriers because it is not a common carrier. It's not a carrier at all.

Google Voice maintains no network. It owns no hardware. (It bid on the 700 MHz spectrum, but failed, probably intentionally.) It doesn't carry anything -- people, goods, information. It's a piece of software. It generates information that is carried by Internet carriers -- ISPs and the subnetworks, essentially -- between end users.

If that seems like a trivial distinction, try comparing it to the mail system. Internet carriers, like the postal service, are common carriers. A person sending a letter through the mail is not required to send letters to every member of the public who wants want. He can be discriminating in what he sends and to whom. But whatever he sends, the postal service has to carry it. Google Voice isn't carrying the phone calls -- it's sending them. And ISPs, like the postal service, have to carry them.

In its September 25th post, Google hints at this fact when it says

Unlike traditional carriers, Google Voice is a free, Web-based software application, and so not subject to common carrier laws. Google Voice is not intended to be a replacement for traditional phone service -- in fact, you need an existing land or wireless line in order to use it.

But stated like this, it sounds like weasling. Clearly the post was written for the general public, and not for lawyers. But Google is not going to win any allies in the general public by sounding like this. (Pointing out that it's an invite-only service doesn't do wonders for their image either.)

Google needs to come out and tell the public the straight deal. They are not denying a common service to anyone. They are simply placing boundaries on what their software is capable of. Google Voice isn't simply "unlike traditional carriers", it's not a carrier at all. It's a piece of software. And when it is released to the general public (it should be, and I believe it will), it will be available to any member of the public on nondiscriminatory terms. And any member of the public will be able to use it to make calls to the same universe of numbers.

And while they're at it, Google should probably explain this to the FCC as well. This should be obvious to the FCC -- after all, it's their job -- but apparently it isn't.

Inaugural Post

2009-10-13T17:33:00.001-04:00

Welcome to REx3, a blog about legal, technological, and sports issues, plus whatever else I feel like talking about on a given day.