FCC commish cites infamous porn ruling to slam shady US mobile competition report

How about we define the thing we're supposedly deciding on, queries Rosenworcel

FCC Commissioner Jessica Rosenworcel made her presence felt at her first meeting in a year at the US communications regulator on Wednesday – when she cited an infamous Supreme Court decision over pornography to slam a report claiming there was sufficient competition in the American mobile market.

"For the first time since 2009, the FCC makes an affirmative finding that the metrics assessed in the Report indicate that there is effective competition in the marketplace for mobile wireless services," read the official statement [PDF] from the FCC regarding its dossier.

Rosenworcel was unimpressed, not just by the watchdog's sudden conviction that the US mobile wireless market was working fine but also by how it reached that conclusion.

In a statement [PDF], she noted: "This report is firmly rooted in the present, with a singular focus on the mobile voice and data services available today ... But it has a fatal flaw – and for that reason I dissent."

The FCC is charged by Congress to ascertain whether there is "effective competition" in the market. However, the report decides that it isn't able to do that, while at the same time concluding that it has happened.

"The agency is tasked with an analysis of whether or not there is 'effective competition.' Simple enough," she notes. "But to make this determination in the affirmative – as this report does – requires that the Commission define 'effective competition.' On this account it fails. Instead of a definition of this essential threshold, we have all manner of apologies and admissions."

Who needs experts anyway?

Rosenworcel notes that the report effectively says that because measuring competition is complicated it has decided it can't do it. She is not impressed.

"Well, tough. Congress creates new terms in legislation all the time and it's up to expert agencies like this one to define them. But our failure to do so is inexcusable if the Commission wants desperately to conclude, as it does here, that 'effective competition' exists."

She's back! Jessica Rosenworcel returns to FCC as America's net neutrality row heats up


Instead, she notes, the FCC appears to be adopting the infamous judgment of Supreme Court Justice Potter Stewart in 1964 when he was asked to decide a threshold test for obscenity in the case Jacobellis v Ohio.

Stewart decided the material at the heart of the case – hardcore pornography – was not obscene but refused to give a way to define obscenity for future cases because "I could never succeed in intelligibly doing so."

Instead, he said, "I know it when I see it, and the motion picture involved in this case is not that." The picture in question was Les Amants (The Lovers), a 1958 French drama about an adulterous woman.

At the time, Stewart's judgment was praised as being realistic and honest. But over the years it has been promoted in both positive and negative terms: either as a realistic assessment of complex situations, or as an unhelpful way of ensuring that there is perpetual uncertainty over a difficult topic.

In Rosenworcel's usage, she definitely means the latter. "If you add this up, this Commission is making a determination about the state of competition in one of the most vital sectors of the new economy using a standard that calls to mind Potter Stewart's famous 'I know it when I see it'," she argues. "That's not good enough. The bottom line is this: If you find it, you must define it. And on that account, this report fails."

Kissy kissy

The bigger issue is that under new chair Ajit Pai, the FCC has taken what has always been an overly friendly relationship between the federal regulator and the companies it is supposed to oversee and moved it to a new level.

The FCC is currently considering a number of active measures that serve only to support the interest of the cable and mobile industries, against fierce opposition from other industries and consumer groups.

Most notable is of course an effort to roll back existing network neutrality rules decided by the FCC. But there is also an apparent effort to lower the FCC's definition of broadband speeds – for no clear reason except to make the industry look good rather than behind-the-times. And then there are broadband privacy rules that Pai struck down, just days before they were due to take effect.

In short, if you sense you are getting screwed by the federal government that's because you are. Even Potter Stewart would have seen that. ®

Similar topics

Narrower topics

Other stories you might like

  • Ransomware encrypts files, demands three good deeds to restore data
    Shut up and take ... poor kids to KFC?

    In what is either a creepy, weird spin on Robin Hood or something from a Black Mirror episode, we're told a ransomware gang is encrypting data and then forcing each victim to perform three good deeds before they can download a decryption tool.

    The so-called GoodWill ransomware group, first identified by CloudSEK's threat intel team, doesn't appear to be motivated by money. Instead, it is claimed, they require victims to do things such as donate blankets to homeless people, or take needy kids to Pizza Hut, and then document these activities on social media in photos or videos.

    "As the threat group's name suggests, the operators are allegedly interested in promoting social justice rather than conventional financial reasons," according to a CloudSEK analysis of the gang. 

    Continue reading
  • Microsoft Azure to spin up AMD MI200 GPU clusters for 'large scale' AI training
    Windows giant carries a PyTorch for chip designer and its rival Nvidia

    Microsoft Build Microsoft Azure on Thursday revealed it will use AMD's top-tier MI200 Instinct GPUs to perform “large-scale” AI training in the cloud.

    “Azure will be the first public cloud to deploy clusters of AMD's flagship MI200 GPUs for large-scale AI training,” Microsoft CTO Kevin Scott said during the company’s Build conference this week. “We've already started testing these clusters using some of our own AI workloads with great performance.”

    AMD launched its MI200-series GPUs at its Accelerated Datacenter event last fall. The GPUs are based on AMD’s CDNA2 architecture and pack 58 billion transistors and up to 128GB of high-bandwidth memory into a dual-die package.

    Continue reading
  • New York City rips out last city-owned public payphones
    Y'know, those large cellphones fixed in place that you share with everyone and have to put coins in. Y'know, those metal disks representing...

    New York City this week ripped out its last municipally-owned payphones from Times Square to make room for Wi-Fi kiosks from city infrastructure project LinkNYC.

    "NYC's last free-standing payphones were removed today; they'll be replaced with a Link, boosting accessibility and connectivity across the city," LinkNYC said via Twitter.

    Manhattan Borough President Mark Levine said, "Truly the end of an era but also, hopefully, the start of a new one with more equity in technology access!"

    Continue reading
  • Cheers ransomware hits VMware ESXi systems
    Now we can say extortionware has jumped the shark

    Another ransomware strain is targeting VMware ESXi servers, which have been the focus of extortionists and other miscreants in recent months.

    ESXi, a bare-metal hypervisor used by a broad range of organizations throughout the world, has become the target of such ransomware families as LockBit, Hive, and RansomEXX. The ubiquitous use of the technology, and the size of some companies that use it has made it an efficient way for crooks to infect large numbers of virtualized systems and connected devices and equipment, according to researchers with Trend Micro.

    "ESXi is widely used in enterprise settings for server virtualization," Trend Micro noted in a write-up this week. "It is therefore a popular target for ransomware attacks … Compromising ESXi servers has been a scheme used by some notorious cybercriminal groups because it is a means to swiftly spread the ransomware to many devices."

    Continue reading
  • Twitter founder Dorsey beats hasty retweet from the board
    As shareholders sue the social network amid Elon Musk's takeover scramble

    Twitter has officially entered the post-Dorsey age: its founder and two-time CEO's board term expired Wednesday, marking the first time the social media company hasn't had him around in some capacity.

    Jack Dorsey announced his resignation as Twitter chief exec in November 2021, and passed the baton to Parag Agrawal while remaining on the board. Now that board term has ended, and Dorsey has stepped down as expected. Agrawal has taken Dorsey's board seat; Salesforce co-CEO Bret Taylor has assumed the role of Twitter's board chair. 

    In his resignation announcement, Dorsey – who co-founded and is CEO of Block (formerly Square) – said having founders leading the companies they created can be severely limiting for an organization and can serve as a single point of failure. "I believe it's critical a company can stand on its own, free of its founder's influence or direction," Dorsey said. He didn't respond to a request for further comment today. 

    Continue reading

Biting the hand that feeds IT © 1998–2022