October 9, 2003  ·  Lessig

On Monday, the 9th Circuit decided that the FCC was wrong in classifying a “cable modem service” as an “information service,” and thus exempting it from any common-carrier-like obligations. This is a very important decision in the ongoing battles about preserving end-to-end neutrality on the Net.

But meanwhile, there’s a very tricky game being played with the Internet Tax Freedom Act which might make the whole 9th Circuit issue moot. Someone has slipped a nice little change into that statute that potentially could exempt any broadband service from any common carrier obligations. The legislative history is being puffed up to say this won’t be the effect. But the language of the change has many concerned (and no doubt some filled with glee) that this fundamental policy issue will be decided by a slip of the hand in a totally unrelated bill. As one critic writes,

If Congress adopts the bill in its current form and it becomes law, it will be cited as “evidence” that it was Congress’ intent to treat the transmission services used to provide Internet access differently than those transmission services not used for Internet access, and more precisely that Congress intends the underlying transmission service to be treated the same as the Internet access service. (not subject to Title II in the DSL and cable modem proceedings) Moreover, it will be used to argue that Congress supports the FCC’s revisionist “telecommunications is subsumed into information services” approach that serves as the basis of the FCC’s cable modem and wireline DSL proceedings.

The bills are HR 49 and S 150.

October 8, 2003  ·  Lessig

I was, at least. The recall provision is still stupidly crafted. But the results last night are as a democracy should be. A clear majority voted to recall the governor. And more people than supported Davis voted to elect Arnold Schwarzenegger.

He wasn’t my first choice. But it is interesting that the two top candidates “started” their life in the US in poverty. Anyone who gets as far as either did deserves our respect. And we Californians can hope that some of the benefit of the hard work and luck that has marked Mr. Schwarzenegger’s life might now pass to California.

October 7, 2003  ·  Lessig

0.jpgWillem is a month old today. It has been an extraordinary month. I apologize for the absence, and am astonished by the kindness in the comments to my last post. Thank you.

But it’s time to restart this space.

Judge Stanley Birch provides the perfect incentive. Howard Bashman has a wonderful interview with Judge Birch, in the course of which he offers “With all respect, Eldred was wrongly decided.”

Thank you, Judge. It’s nice to be back.