The same judge responsible for cutting the legs out from under FilmOn has ruled ivi must cease retransmitting network affiliate stations that make up the bulk of its service.

In a widely-expected ruling, the Hon. Naomi Rice Buchwald, U.S. district judge for the Southern District of New York proved to be a sympathetic judge to the interests of America’s largest broadcasting companies by mirroring an earlier decision blocking virtual online cable systems from retransmitting broadcast television programming online.

According to the court’s ruling, ivi doesn’t qualify as a cable system because, in part, it’s too new of a concept.  Buchwald ruled that the definition of a cable system was written in 1976, before the Internet was around to redefine it.  Under the Copyright Act, any cable system can rebroadcast TV signals so long as they pay copyright fees.  This “compulsory license” gives cable systems the right to carry broadcast stations, but only to cable operations subject to oversight by the Federal Communications Commission.

But since the FCC does not regulate Internet video, ivi doesn’t qualify for this provision of the Act, according to Judge Buchwald.

“First, a service providing Internet retransmissions cannot qualify as a cable system,” the ruling said. “Second, the compulsory license for cable systems is intended for localized retransmission services, and cannot be utilized by a service which retransmits broadcast signals nationwide. Third, the rules and regulations of the FCC, even if found not to be binding on a service such as ivi, are integral to the statutory licensing scheme established in 1976.”

Buchwald issued a similar ruling against FilmOn, another virtual online cable system.  Broadcasters sought the same venue to hear their latest case against ivi in hopes the judge would rule similarly, and she did.

As a result, ivi closed down its streaming service this morning pending a planned appeal:

Ivi issued this statement this morning on their website.

This home in Silver Spring became fully involved in fire after neighbors couldn't reach 911 and had to rescue the 94-year old resident themselves.

More than 10,000 calls to 911 during last month’s blizzard on the east coast failed to reach emergency officials over Verizon’s network according to the Federal Communications Commission.  Even worse, terrorism experts suspect the 911 failures could impact the entire nation during a major disaster, weather event, or terrorist attack.

Last month, a Silver Spring residence went up in flames and neighbors had to rescue the 94-year old owner themselves after repeated attempts to call 911 failed.

The latest and most serious incident occurred in Washington, D.C. and its suburbs Jan. 26 when a snowstorm triggered more than 10,000 calls for help that never reached emergency responders.  The blame is being laid at the feet of one company — Verizon Communications.

All 14 circuits in the Verizon network that properly route all wireless calls in Montgomery County failed and nine of 10 Verizon circuits in Prince George’s County failed over a five-hour period on the night in question. This resulted in approximately 8,300 blocked 911 calls in Montgomery County and 1,700 blocked 911 calls in Prince George’s County that evening, according to Rear Admiral Jamie Barnett, Chief of the FCC’s Public Safety and Homeland Security Bureau.

“I know that you will agree that any 911 call which is not connected can have serious consequences, but the large number of missed 911 calls on January 26 is truly alarming,” Barnett wrote Verizon. “The ability to call 911 is critical to the safety of the public. This is especially true during extreme weather events. The public rightly expects that they can use 911 to reach the appropriate first responders in an emergency. In addition to your written response, I request a meeting with appropriate representatives from Verizon within the next two weeks to discuss your resolution of this matter.”

Barnett and the FCC also expressed concerns these problems may not be an isolated incident, but could be a nightmare waiting to happen wherever Verizon provides telephone service.

Verizon blamed an equipment failure and an avalanche of calls for the problem.

“We have been addressing this issue directly with the counties involved, and will work cooperatively to address the FCC’s questions, as well,” said Harry Mitchell, a Verizon spokesman.

[flv width=”600″ height=”380″]http://www.phillipdampier.com/video/Montgomery County 911 No answer.flv[/flv]

This YouTube video shows a 911 call in Montgomery County going unanswered for nearly a minute and a half.  (2 minutes)

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/WUSA Washington 911 Service Problems 2-22-11.flv[/flv]

WUSA-TV in Washington has followed the 911 disruptions for several weeks now.  Channel 9 picks up the story starting with the fire in Silver Spring.  (6 minutes)

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/WTTG Washington 911 Service Problems 2-22-11.flv[/flv]

WTTG-TV in Washington also reports on the frustration from 911 callers as well as city and local officials annoyed with Verizon.  (6 minutes)

Watching two governments — one in Ottawa, the other Washington — debate important broadband issues has been an illuminating experience for this American.  As Canada continues to deal with a firestorm of protests against broadband pricing ripoffs from usage-based billing, the debate over Net Neutrality achieved new levels of absurdity in Washington yesterday as a largely Republican crowd fought to overturn the FCC’s watered-down open Internet protection policies.

Watching and listening to a combined eight hours of hearings both north and south of the border this month has cast a striking contrast between our two governments.  After it was all over, I can forgive anyone who decides Congress is filled with a bunch of uninformed meat-heads who fight for the talking points attached to their fat contribution checks from the telecommunications industry.

It is unseemly watching Republicans fall all over themselves to impress AT&T, Verizon, and Comcast with their grasp of these companies’ arguments against an open and free Internet.  There are also some bad Democrats on AT&T and Verizon’s virtual payroll, but the hearings this week in the House of Representatives were over the top — a Republican Valentine’s Day present for Big Telecom, replete with clueless representatives who clearly don’t understand the concept of Net Neutrality beyond the 3×5 index cards handed to them by one of their respective staffers.  For the most reactionary members, handing out photoshopped-pictures of Leon Trotsky hugging Barack Obama in front of a spool of fiber optic cable would have been just as effective.

The deservedly-undercovered Judiciary Committee hearings featured a single wireless ISP (WISP) owner who appears to spend most of his free time writing in the Comment sections of major American newspapers and social media sites.  His concern?  A technicality in the current Net Neutrality rules about customers running web servers.  ServerGate.  There’s a hot button issue if there ever was one.  Brett Glass’ customers are much more interested in watching online video, a concept that frightens a lot of WISP owners into placing usage caps on their service to discourage them from doing that.

Chairman Walden

Another witness at that hearing came straight from a telecom industry funded think tank.  Inviting AT&T to appear themselves would have effectively cut out the middleman and saved everyone a whole lot of time.

Gigi Sohn from Public Knowledge was left alone to stick up for Julius Genachowski’s cowardly-lion Net Neutrality rules, which in this author’s opinion are barely better than nothing, fatally flawed and one court decision away from oblivion.

Yesterday’s hearing featured FCC Commissioners on a partisan griddle as members of Congress asked softball questions of those they favored, and strafed the ones they don’t with long-winded lectures.

Republican members had no time for stories of Providers Gone Wild, particularly Comcast’s secret squeeze of its customers’ broadband speeds when running peer-to-peer software.  Such stories conflict with their talking point world view that broadband from the private sector should be run any damn way they please.  When some go to far, “they are isolated incidents” claimed Republican members, to the nodding affirmation of the two Republican commissioners.

Julius Genachowski was reduced to defending his homeopathic net regulations as a regulatory “light touch” — like a dew kissed raspberry on a summer morning.  But representing regulation as harmless didn’t do him any favors, because he forgot his audience.

Drive-by Hearing: For much of the hearing, C-SPAN cameras caught most of the seats empty as members came and went.

No argument about moderated government regulation is ever going to fly in a room with members like Rep. Marsha Blackburn (R-Tenn.) who spent her five minutes of talk time scorching the FCC for holding up the Comcast-NBC merger with questions.  How. dare. they.

Congressional hearings used to be about fact finding and allowing members to educate themselves on the issues before casting their votes.  No more.  These days, hearings are an exchange of preconceived talking points as members switch between grilling or ignoring the witnesses they don’t like while fawning over those they do.

GigaOm called the entire affair “nauseating” and helpfully condensed the only three things you need to take from the hearings:

• FCC Chairman Genachowski said the Level 3 and Comcast debate over access to Comcast’s last mile subscribers is a business issue and not a net neutrality issue.
• FCC Commissioner Robert McDowell resurrected the ghost of unlicensed white spaces and set it up as a competitive threat to existing ISPs. He then used that threat of eventual competition to argue we no longer need net neutrality rules. I tend to agree that if we had robust broadband competition, we wouldn’t need network neutrality, but according to McDowell, white spaces aren’t dead. If they aren’t dead, that’s important.
• The FCC will keep the docket open on its effort to reclassify broadband, which would give the FCC the legal authority under existing laws regulate broadband as a transportation service (the so-called Title II authority). This is a good thing for network neutrality fans, as the existing net neutrality rules will likely be challenged in court, and keeping that docket open leaves a back door for the FCC to implement rules. However, the industry hates the idea of reclassification and will fight it tooth and nail. It also means more hearings, comments and arguments over the entire issue.

Contrast this with more than a week of hearings in Canada on usage-based billing.  The differences are nothing less than striking.  Members attending those hearings were well-informed about most of the issues surrounding the usage-based billing debate and aside from the occasional minor grandstanding and long-winded questions, got to the bottom of the issues at hand and were prepared to challenge assertions made in all sides of the debate.  They even pronounced everything correctly.  A 10 minute exchange over the pricing formulas for Bell’s wholesale Gateway Access Service (GAS) probably won’t get you a soundbite on the evening news, but it will enlighten a member of Parliament about just how unjustified these pricing schemes are.

Not so in Washington, where net policy nuance is a French word meaning “weakness” or “socialist takeover.”

Bell Canada must surely wish they lived in a country where the hired help in Congress can reflexively support whatever is on the company’s agenda… for the right price.  For the moment, they are stuck exchanging Valentines with their close friends at the Canadian Radio-television and Telecommunications Commission, most of whom came from the industry they now regulate.

Minutes after Washington’s hearings ended, several Republicans, with their minds already made up, introduced a Joint Resolution to override the FCC’s authority on Net Neutrality and sweep the free and open Internet into a dustbin.  There are new owners of the Internet in town and it’s past time you got used to it — they are AT&T, Verizon, and Comcast.  Your bill is in the mail.  You can thank us now or later.

Congress' Joint Resolution requires a simple majority -and- the President's signature to pass. Ironically, the Republicans touted the measure as "filibuster-proof," but considering the president is likely to veto it, a filibuster is the least of their problems.

[flv]http://www.phillipdampier.com/video/C-SPAN Hearing on Net Neutrality 2-16-11.flv[/flv]

Watch yesterday’s House hearing on Net Neutrality, but first remove all sharp objects from the room and avoid stomach upset by not eating during the show.  (3 hours, 41 minutes)

A small wireless ISP owner who regularly complains about Net Neutrality and an industry friendly group that opposes broadband oversight were the handpicked guests at a hearing held today to investigate Net Neutrality.  Only one witness, Gigi Sohn from Public Knowledge was there to defend the important consumer net protection principle.

The hearing, held by the House Judiciary Subcommittee on IP, Competition and the Internet was among the first held in the new Republican-controlled Congress, which overwhelmingly opposes Net Neutrality.  It opened an opportunity for Net Neutrality-opponents to attack the watered down rules, adopted by the Federal Communications Commission last December.

Laurence “Brett” Glass, owner of Lariat, a wireless ISP in Laramie, Wyoming, is a familiar name to those who follow comment sections of public interest websites and newspapers.  Glass regularly attacks the concept of Net Neutrality and favors Internet Overcharging schemes, if only to protect revenues on his bandwidth-limited wireless ISP.

Glass told Congress adoption of even the FCC’s watered down regulations will put his company’s future at risk because they could be interpreted to allow “servers” on his network.  Andrew Schwartzman, a net-neutrality proponent and senior vice president at the Media Access Project, says the restriction could technically violate rules, but only if it was argued as a prohibition of attaching server hardware/equipment.

“He is describing a practice which would violate Michael Powell’s 4 principles from 2005 (I think) since it allows end users to attach any device,” Schwartzman said in an e-mail to The Hill.

Of course, the watered down Net Neutrality regulations exempt wireless networks, and Glass’ argument ignores the long-recognized concept of the Acceptable Use Policy, which prohibits network activities that can create problems for the network itself or other customers.  The FCC moving in to crush Lariat over such a scenario is hard to imagine in any case.

Larry Downes, another witness, represents the Big Telecom-friendly TechFreedom, which loathes industry regulations that could impact big players like AT&T and Verizon.

Downes argued the Net Neutrality rules were slipped in during the Lame Duck Session to avoid Republican scrutiny on Capitol Hill and are completely unnecessary.  Downes argues:

• There is no need for new regulation because there were never any serious violations (ignoring the Comcast incident that interfered with network traffic and the subsequent adventures (by others) this year on the wireless side where content access is being repackaged and sold by third parties based on access and usage).
• Enforcement mechanisms are complex and expensive: It costs too much to investigate, so why bother?
• Exceptions reveal a profound misunderstanding of “the Open Internet”: Downes argues today’s well-accepted concept of speed equality and agnostic network management are simply popular with consumers and irrelevant to the technical workings of the Internet itself.
• The FCC lacked authority to issue the rules—and likely knew it: By not invoking appropriate authority, the FCC’s new Net Neutrality policies may fail to pass court scrutiny.

Downes favors a different kind of net freedom — one for corporations to treat the online ecosystem as they please and let the free market sort it out.  If you are served by two providers who believe in Internet Overcharging schemes and speed throttles, so be it.  If you’re lucky enough to be served by a provider that supports today’s online experience, lucky you.

The FCC evidently was not invited to testify about their own policy.  Instead, Public Knowledge’s Gigi Sohn argued for Net Neutrality, but even she complains the FCC’s current provisions of that policy don’t go far enough.  Public Knowledge is planning a pushback against Republican-led efforts to repeal Net Neutrality in a campaign launching later this week — The Internet Strikes Back.

(Click the image on the left to enroll in the campaign and participate in the effort to stand up for Net Neutrality this Thursday.)

Public Knowledge:

You – the Internet – are going to make it clear that ISPs cannot be gatekeepers and do not get to choose which websites work and which websites do not work.  You – the Internet – will tell all of Congress to join the 105 Representatives who have already come out clearly in support of a free and open Internet.