October 2002 Archives

Movable Type appears to be occasionally writing improper HTML, leading some browsers to ask if you want to download a file when visiting blog.tph-lex.com. A rebuild of the site usually fixes the problem. I'll try to figure out what's up, but I'm hoping that MT 2.51 will just take care of the issue.

Update: When they occur, the errors appear to affect Internet Explorer (tested with version 6), but they do not appear to affect Mozilla (tested with version 1.1). 11:09 a.m. MST 31 October.

David Weinberger and David Isenberg kindly emailed me to talk about my concerns about the letter to the FCC at their The Paradox of the Best Network site. David I. gently pointed out that they had indeed highlighted continuity of service as a special concern for any transition away from traditional circuit-switched telephone technologies. David W. voiced the hope that universal service (that is, rural and inner-city service to people who can't pay the fully distributed costs or the competitive equilibrium prices of their service) would be plausible with new technologies at least as effectively as with the current network. Both re-emphasized the point that they believe that incumbent networks are failing irretrievably, so that the proper question to ask is not whether we should get rid of the old network technologies and business models, but how we can least painfully deal with the obsolescence of those technologies, the failure of those business models, and the imminent insolvency of the companies that have employed them.

It will take more than the FCC to change the legal rules of the telecom market. A vast body of legislation and regulation depends upon and assumes the existence of the architecture of the traditional telephone system. For example, the IXC/ILEC-BOC/CLEC/wireless/cable industry structure plays a substantial role in the way the Telecommunications Act of 1996 is put together. That Act was designed to encourage competition, but it was designed to do so within the architecture of the existing wireline system. The FCC has to work within the structure set by the Telecommunications Act and other telecom-related legislation. Every state also regulates the carriers with its jurisdiction, so there are state legislative and regulatory questions to be resolved as well. The drafting of the 1996 Act was a vast process in which the RBOCs/ILECs, would-be CLECs, IXCs, wireless and cable operators, state regulators, and the FCC all went to Congress and tried to strike compromises. (Since then, of course, ILECs have been rather unsatisfied with some of the ways the FCC has administered the Act -- see, for example, the network element lease rate case, Verizon Communications v. FCC, 535 U.S. ____ (2002), and we also haven't been successful in broadly creating economically sustainable wireline CLECs with good service.) So my first thought is that this is not merely a FCC matter. It's also a legislative matter, and Congress is probably going to have to be involved at some point. It may involve itself regardless of whether anyone wants it to do so, but it's more likely that the industry and public will have to drag Congress back into telecom policy discussions.

My former regulated industries professor made another point from the legal perspective that I want to emphasize: Right now, we (academic and practicing lawyers, others in government or public policy who genuinely desire more optimal telecommunications systems, and to a certain extent the FCC) need to be educated about the 'hardcore questions of technological feasibility' of new network ideas, especially technologies designed to enable widespread packet-switched voice communication. I would like to add that we will also need hardcore discussions of economic sustainability of businesses based around new technologies. By "educated" I do not mean "lobbied." We need serious technological and economic analysis. This is partly because we want policymakers to make the best, most informed decisions possible. It's also because most of us in the legal field are intensely critical thinkers and really want to get this as right as we can. We're just better at law than at technology. Another important reason to accumulate hard evidence of technological and economic feasibility, though, is that at some point the FCC will have to make enforceable decisions about these matters. If those decisions are to hold up in court, they will have to be based on 'substantial evidence,' and its rulings will have to address and respond to the objections of those who oppose the proposed rule. It will also need to be acting within authority derived from the telecommuniations laws and not contrary to any of the laws on the books. If those laws must be changed, only Congress can change them.

My hunch, based on what little I know about regulation, is that a revolution away from traditional circuit-switched telephony is probably not imminent in the next few years. The mechanisms of regulatory and broader legal change do not usually move that quickly, and they will probably buy time -- with lots of dollars in regulatory or bankruptcy wealth-shifting if that's what it takes. But if big change is going to happen, we should start getting as many smart and involved minds in on it as we can. Technology developers alone can't solve all these problems. The amount of social policy, existing legal 'infrastructure,' and, frankly, money that is involved demands the involvement of legal specialists* and economists. We really need to do all we can to get this right.

The question I want to ask now is, where does the research and communication among technology specialists, policy and law specialists, and economists need to go from today? I'll keep thinking about that question, and maybe write more here on that later. I also want to hear your thoughts. I deeply appreciate comments by email (tph at tph-lex dot com) or here on the weblog. Please indicate in email if you do not wish to be quoted publicly.

//

References: Telecommunications Act of 1996, Feb. 8, 1996, P.L. 104-104, codified throughout Title 47, U.S. Code, available at http://thomas.loc.gov/cgi-bin/bdquery/z?d104:SN00652:|TOM:/bss/d104query.html
Title 47 of the U.S. Code is available at http://www4.law.cornell.edu/uscode/47/
Verizon Communications v. FCC, 535 U.S. ____ (2002), available
at the U.S. Supreme Court (PDF) or Cornell Law Information Institute (HTML).
And, of course, the FCC.

* I've been avoiding using the word "lawyers" because a lot of people in
legal academia no longer practice law.

I received today a special edition of David Weinberger's JOHO newsletter [here] which in turn directed me to the open letter to FCC Chairman Michael Powell on this page.

The letter's argument turns on several points. (1) "[B]alance-sheet weakness, long-haul overcapacity, and even the recent speculative bubble[] are effects, not causes," of the apparently pending collapse of the telephony industry as we know it (ILEC, IXC, and CLEC providers). (2) Though none of them to admit it, the infrastructure that these providers have invested in is largely obsolete. (3) The best result is to let the current providers fail and to encourage new companies to enter the market using newer technologies, resulting in more widely available broadband and other next-generation technologies.

Here are some of my tentative initial thoughts on the matter. I may think rather differently after I've had a chance to talk to my former regulated industries professor.

One legal and practical problem that I expect the FCC will face in considering this letter is its mandate to try to provide universal service. Ranchers in Sterling, CO pay the same or almost the same price for residential telephone service that I pay in the Denver suburbs, even though it costs a great deal more to provide them with that service. Few rural residents could afford telephone service if they had to pay the fully distributed costs of that service. Federal and state telephony laws mandate a scheme of cross-subsidies to make service to the poor and distant possible. The FCC, under Congressional mandate, has sought to maintain some form of Universal Service even in the context of competitive local service and the mishmash of regulated and unregulated services that one finds in present-day telephone service. If I recall correctly, current law and FCC regulations impose an access fee that goes into a pooled fund; most LECs explicitly pass that fee on to the consumer as a consumer charge (look for the "universal service fees" and other government access charges on your bill). The FCC cannot simply choose to ignore the fact that the demise of telephony as we know it could leave a lot of people without any form of service.

If Qwest were to shut down operations tomorrow, I would still have my Sprint PCS cellphone, though I'd disappear from the internet because I can afford no more than my dialup modem for internet access, and nobody provides broadband service to my apartment for a startup cost of less than several hundred dollars. Many people outside the Denver and Colorado Springs areas would be left entirely in the cold. Some of them might be lucky enough to receive cellular service, if they can afford it. Most in rural areas would be without any form of voice telephone service, let alone data.

The FCC can let the RBOC/ILECs fail only when someone has shown them how those rural services can be replaced, unless Congress removes the universal service mandate. Universal service is the unwanted stepchild of regulation, for only the people who receive subsidized service like it. LECs don't like to have to shuffle around the money to pay for it or to invest in miles of telephone line on which they reap no profit. Unsubsdized customers don't like to pay the fee. It's a subsidy that prevents accurate cost distribution, but it has important social goals. The law requires the FCC to devise and enforce universal service mechanisms. It cannot legally decide to allow current telephony systems to collapse without explaining how it plans to try to provide universal service in the future.

Another problem is that we are so dependent on telephones that a cataclysmic collapse of the CLEC/ILEC/IXC structure even for a few days would have horrendous costs. This raises all kinds of questions. What exactly do proponents of allowing complete failure have in mind when they talk about that failure? Who is to be left without service for days, weeks, or months? Can there be some sort of massive bankruptcy phaseout of existing systems, or do we just starve them and see how long it takes them to turn off the power to the central offices? Who will be there at that very moment to provide reliable interconnection between everyone who has service the day before?

I wish I had rhetorical answers to these rhetorical but serious questions. They are questions the FCC must ask and must try to answer. I have no doubt that we need to migrate to new technologies and new ways of providing communications services. The problem is how to minimize the costs of that transition. Anyone have any ideas? The FCC can act legally only on the basis of substantial evidence in the record and consistent with the requirements of federal telecommunications law.

Glenn Reynolds (of Instapundit) has written a column on the relationship between weblogs and the larger newsmedia.

Halley Suitt wants to know how to get paid for writing (a blog, in this case).

Don't we all?

There was a time, not so long ago, when web-based advertising was to be the wave of the (advertising) future. Banner ads were to make it possible for everyone to have server space, maybe even bring in an income off of their websites.

It didn't work. Maybe that's partly because the web advertising market was disproportionately closed. Everyone advertised their websites on other people's websites, but few people from outside the website-generating market poured money into it.

Halley says, what about Coca-Cola? "I want Coke for a sponsor. I want to write about Coke because I like Coke." We probably won't see it happen, for a few reasons.

Don't worry, Prof. Cooper, I don't think you're that bad about your wine commentaries or that most readers would respond like the counterpoint here, even if the wines you reviewed this week are the first ones that remotely approach my price range.

My girlfriend and I like shiraz a lot, and buy black diamond-label Rosemount, Buckeley's, Fat Bastard, or Paringa when we can afford them. But with our present budgets, the wine rule is, "Only occasionally, and no bottles over about $12."

JCA describes her feelings and observations of 1L burnout.

By about this time my 1L year, I had become a zombie. I slept an average of five and a half hours a night, eight on weekends. I consumed astonishing quantities of Dr. Pepper and Coca-Cola. The caffeine intake may have kept me awake, but I was so jittery that I struggled to put coherent sentences together. When I tried to speak in class, the words that formed in my brain never seemed to match with the words that escaped my mouth.

Some 1Ls find that they can't easily separate what they're learning in school from the rest of their lives. I was one of them. One chilly October afternoon my 1L year, I caught the bus home from near the law school. My apartment waited for me only nine blocks away, but I was not ready to walk those nine blocks with the weight of all of my casebooks trying to escape from my too-small, too-old backpack. As we rolled down the street, my mind processed every scenario I saw in terms of the Torts class I'd just left. My knuckles turned white as I gripped the pole when the bus stopped short to avoid hitting the pickup truck that had nearly hit a jaywalking pedestrian. In a caffeine-polluted haze of firing synapses, my mind worked to parse out the different questions of negligence, and I felt vaguely ill as I realized that I couldn't stop it.

The school scheduled each ten-student legal writing section for a lunch with the Dean of the Law School. I vaguely remember mine. In one well-practiced snipped of conversation, the Dean said something that I'm sure all of the law students here have heard: that one of the goals of law school was to teach us how to think like lawyers. I thought, "Is that what this is? If so, I don't really want any part of it!"

Even though my law school is considered less psychologically traumatizing than other schools in its class, my first year quite effectively abused my confidence. I can't blame law school alone for that, because there were other things happening in my life that had cut rather deeply into my confidence, too. But law school was not out to help. JCA puts it so well: "There are few things as fragile and battered as an embattled 1L's sense of confidence, and mine seems to have a Kick Me sign tattooed across its shoulderblades." Maybe I'm still feeling shadows of that, though, and maybe that partially motivated my post yesterday.

Lest you get the wrong impression, I should add that I'm proud of what I've accomplished and I'm very excited to practice law. I can say, though, that that first year was the most difficult year of my life. Law school was not the only reason for that, but it compounded other challenges while adding entirely new ones.

AKMA has been raising once again issues of authenticity, identity, and now confidentiality. I wasn't here for the discussion of these matters that happened earlier on, so I'm looking forward to whatever comes of this. That and I've got some archive reading to do.

Several things came to my mind when I read AKMA's post. First, I wondered about the psychological or moral* impact that the need for confidentiality in certain professional relationships has on both the secret-giver and the secret-hearer. AKMA refers to his own obligations of confidentiality that arise from his clerical role. Mine arise from my role as a legal counselor. (Though I'm not a licensed attorney until the end of the month, I've practiced under state student practice rules, so I've felt some of the demands of client confidence.) Second, I thought about pseudonymity, speech, and the sorts of social pressures that bear upon a speaker. The first of these will wait for another time, but I'll discuss the latter briefly in the context of weblogs.

Several bloggers in the legal field have chosen to blog anonymously or semi-anonymously. I am not truly anonymous -- if you go to tph-lex.com, the parent domain of this one, my name's splattered across the top. I thought very carefully about whether I would try to blog anonymously, and decided not to. However, having made that decision, I have subsequently found myself being extremely cautious about my posts, even though I do not have anything to say that I think is especially volatile.

My caution now probably arises from my present state of employment: un-. The general impression that one gets from talking to law school career services people is that one must work hard to appear perfect in the eyes of potential employers. That makes me a little anxious about what I say publicly. If I appear too curious or skeptical about, say, aspects of employment economics in the legal field or other matters that cross my mind during my job hunt, I may give some potential employers a negative impression in the unlikely event that they cross this page. I don't want to take many chances about that. My lack of anonymity, combined with my lack of knowledge about what a potential employer may dislike, makes me cautious.

Legal bloggers, also known as "blawgers," who are securely employed tend to write without any sort of anonymity or pseudonymity. A glance around the blawgosphere discloses that academics tend to write publicly. This makes a lot of sense -- academia rewards thoughtful writing, and tenure provides even greater job security for those who have it. Among law students, one finds a lot more anonymity and pseudonymity. Some of it is complete anonymity, and some of it is partial anonymity that leaves enough undisclosed that finding an author's name would be challenging except for a few. Alice's true identity remains indiscernable, as Garrett Moritz remarked in a recent review of law school blogs. So is the author of Waddling Thunder. JCA of Sua Sponte signs with what one takes to be her initials, and writes enough about her daily life that if I were in her law school class I'd probably know who she is by the end of the year, but most of us will not. Garrett Moritz himself is one of the few who posts openly using his full name. Paul Gutman does the same. Does their status as students at law schools that rank at the very top among U.S. law schools give them less cause for concern? Perhaps it's simply an unrelated character trait, but I find it tempting to speculate. In practice, established attorneys like Ernie and Denise blog using their full names. A newer attorney, TPB, blogs using initials that would require a lot of digging to connect with a name, provided that the initials he has chosen in fact go with his name. Pseudonymous, he feels free to blog more openly than I.

In the end, of course, this is all speculation. I haven't a large enough sample to find any sort of reliable correlation. Only those who write know why they choose anonymity for a particular piece of writing.

What especially interests me is AKMA's description of the tradeoff in anonymity and pseudonymity choices. "[T]he practice of pseudonymity buys the prerogative to say whatever one wants at the cost of acceding to one's unfreedom to speak in one's own name." [here] When one chooses to speak anonymously, one loses the psychological benefit of identifying with the public expression of one's thoughts. Presumably the anonymous speaker trades off that benefit against some kind of social rejection that the speaker suspects she or he will suffer if the general public knows that she or he is the speaker. Pseudonymity is even more complex, because one goes so far as to put a different name on one's speech. AKMA asks what effect the act of using different names for different speech has upon the speaker in terms of the speaker's identity.

I want the psychological benefit that comes from identifying myself with the things that I say (even though this means that on occasion I will kick myself for appearing less intelligent when I say something without thinking carefully enough about it). Yet still, having chosen not to hide my name, I choose my topics very carefully. Perhaps I'm simply trying to please too many people. What do others think about this, especially those of you who have chosen to blog in partial or complete anonymity?

* A note: When I use the word "moral," I use it in a broad sense. At the risk of oversimplifying, I'll say for now that I use the word "moral" to refer to the impact of individuals' decisions and behavior on their own quality of life as well as to the impact of their decisions and behavior on the quality of life of others. I am not limiting my use of the word "moral" to a single ethical construct (e.g. rights and duties, the conforming of thought or behavior to a transcendental ideal, action in conformity with a logical categorical imperative, or other conceptual frameworks that are out there). It might help, though, if I say that in the context of this post, I'm using the word in the sense in which Aristotle might have used it. He wrote of "virtues" as those qualities that develop a good (that is, flourishing human) life for the virtuous individual as well as beneficial social interactions in the community.

Quite a few out there have been talking about the Digital ID World 2002 Conference happening in Denver this week. Unfortunately I can't attend even though I live in the Denver area, as being newly-graduated and not yet employed means that I have a zero cash flow. It looks exciting, though, and many fascinating people will be there. Since several of them are bloggers, I think we can expect to hear a bit about the conference from them.

When I installed MT 2.5, I discovered that my page got really ugly when my sidebar grew longer than my content. After some tweaking of the Main Index template and the CSS stylesheet, I have been unable to get the site to look the way I want. I'm probably going to spend a while this evening switching over to a tables-based system for dividing the screen.

It's a little frustrating, since I'd planned to use this time actually to write something. Hopefully that will come soon.

I'm very excited to be able to say that I passed the July 2002 Colorado Bar Exam! I will swear in as a Colorado attorney at the mass swearing-in ceremony on October 29th.

I wasn't panicked about the exam, but the suspense of not knowing was still starting to get to me. It's very nice, especially in the middle of a job search, to know for sure that I passed.