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An interesting interchange between Esbin and approve:ocean Reed -- god reading
From: David Farber <dave () farber net>
Date: Thu, 18 Sep 2008 11:12:25 -0400

Barbara piece at end as text.

The David she refers to is Reid.


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:
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


Let's stop the PFF pandering and bullshit.


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.


Barbara Esbin

Senior Fellow

The Progress & Freedom Foundation

Sept. 17, 2008

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