Three Card Monte at the FCC

We heard a lot of bold assertions from FCC Chairman Tom Wheeler yesterday.

But not much detail to back them up. And when you dig into the core of what he is saying, what you find is a gaping hole full of empty promises and little more.

“This issue is really not that complex,” he promises. (And apparently he is trying to prove that is the case by rushing this rulemaking forward on a compressed schedule and at simply unprecedented speed.)

All the experts saying this will require a second box — the ones who seem to have convinced Commissioner Pai? They’re just wrong. And there will be no billion dollar network changes required either, the Chairman promises, even though the people responsible for making the networks work say the opposite. Want proof? Look at this flowchart purporting to demonstrate that practically nothing would change under this new rule.

But with this rulemaking less than one day old, how can he have a flowchart showing how it would work? Especially when the proposal apparently contemplates two years of “standards setting” to figure out what’s what.

The answer is — he doesn’t know where this process leads or how to solve the many problems it creates. He can’t.

Indeed, when it is convenient for other aspects of his argument, Chairman Wheeler admits he can’t.

In resisting the charge that this rule is an AllVid style tech mandate, Chairman Wheeler and the Media Bureau forcefully claim it merely launches an open standards process where all the stakeholders can come up with solutions of their own. No mandate — just an open process that could lead anywhere. At their press briefing on Wednesday, Public Knowledge admitted that the system would probably require multiple different technologies or solutions to work across different providers and platforms.

But if the solution(s) don’t exist and in a best case scenario won’t for two more years, how can Chairman Wheeler say that they won’t be complicated? How can he promise that the system will not allow any additional ads to be piled on our TVs or that all licensing agreements will be respected? On our first and second read, the Notice of Proposed Rulemaking sure doesn’t contain any categorial assurances like that! Nor did the Media Bureau staff during yesterday’s post-meeting press conference, when they undercut their boss’s blanket assurances by admitting there are still completely unanswered questions about how this proposal could possibly enforce key promises like privacy requirements.

It’s a shell game — Three Card Monte at the FCC. When the Chairman wants to assure people this is no evil tech mandate (which the FCC typically opposes) — he says it merely puts in motion an open process that could lead anywhere. But when he wants to wave away problems and Congressional concern, then it’s a simple technological fix that raises no complex issues and hardly impacts anything at all. And that is the basis on which a massive new rulemaking and follow on consensus-based standards setting processes are supposed to proceed? It’s irresponsible — at best.

Here is the bottom line:

The people who know most about privacy say this rule will eliminate federal statutory privacy protections — and there is nothing in this proposed rule to restore them.

The people who know most about diverse and independent programming say this rule will make it much harder for them to find and reach audiences or to fund quality new shows — and there is nothing in this proposed rule to fix it.

The people who care most about copyright say this rule is a government authorization to exploit others’ creative works without permission — and there is nothing in this proposed rule to stop it.

And the people who know most about networks say it will require new technologies and impose big costs on consumers — and there is nothing in this proposed rule to protect against that pocketbook hit either.

The FCC’s effort to wave away these and other concerns is just a giant shell game at the heart of this rulemaking. And after yesterday’s performance, no one setting policy or reporting on this issue should ever be fooled again.