This is the sixth and final installment in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary today. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court's reasoning in Pacifica as it stood in 1978. Part 4 showed how that logic is even more misguided in light of modern developments. And part 5 was a recent joint editorial on the issue I co-authored with John Morris of Center for Democracy & Technology.

In this final installment, I thought I would just offer up a some further reading on the issue for those who might be interested in doing further research on the topic. Although it is certainly not an exhaustive list of all the relevant books and law review articles out there, below you find a bibliography of some of the very best material on the issue of the Pacifica case, the "pervasiveness doctrine," and modern First Amendment jurisprudence. I've also embedded a Scribd version of a law review article I penned on these issues last year that ties together all my thinking on this front. It is called, "Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age."

Why Regulate Broadcasting (Thierer-PFF) - Upload a Document to Scribd Read this document on Scribd: Why Regulate Broadcasting (Thierer-PFF)

[Note: This is the fifth in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which turns 30 this week. Here are parts 1, 2, 3, and 4. This installment is a joint editorial I released today with my friend John Morris, general counsel for the Center for Democracy & Technology].
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Pacifica decision at 30 (Thierer-Morris) - Upload a Document to Scribd Read this document on Scribd: Pacifica decision at 30 (Thierer-Morris)

[Note: This is the fourth in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court's reasoning in Pacifica as it stood in 1978. This installment will examine why that logic is even more misguided in light of modern developments.]

Whatever legitimacy Pacifica's "pervasiveness rationale" might have once had, it has been largely eroded by modern media developments.

First, the pervasiveness rationale for media regulation fails today because the new content tailoring technologies described in this report make it easier than ever before for parents to manage media in their homes and in their lives of their children. It is impossible to consider video programming an "intruder" in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.

When Justice Stevens argued in Pacifica that broadcast signals represented an "intruder" in the home, he supported that claim by noting that: "Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content." While that may have reflected the state of technology and TV viewing at the time, it is completely at odds with modern realities. In 1978, the viewing experience was a more passive affair and consumers had very few ways to control that experience unless they turned off the television altogether. Today, by contrast, viewers (including parents) have the tools to "tune in and out" at will, and they have abundant "prior warnings" about program content thanks to the existence of ratings, program information, and electronic program guides. These tools help parents restrict or tailor the viewing experience in advance according to their values and preferences.

GamePolitics.com points out that Minnesota will reimburse the video game industry to the tune of $65,000 for their attorneys fees it incurred when challenging Minnesota's 2006 "fine-the-buyer" law. The Minnesota law was unique in that it sought to impose fines on the buyers rather than the sellers of games rated either "M" for Mature or "AO" for Adults Only under the industry's voluntary ratings system. Other state and local laws that have been struck down in recent years imposed penalties mostly on game retailers who sold games rated M or AO to minors. In a scathing opinion handed down back in August 2006, James M. Rosenbaum, Chief District Judge of the District Court of Minnesota, struck down the Minnesota law as unconstitutional.

But here's what's really important about the fact that the industry recovered legal fees in this case and others. As the Entertainment Software Association noted in its press release about the Minnesota settlement: "The ESA [has] prevailed over similar unconstitutional laws in nine other jurisdictions [and] now has been awarded close to $2 million in fees and expenses spent in defending gamers, developers and publishers' First Amendment rights."

As I have noted previously, these cases make it clear that there is a significant opportunity cost associated with censorship efforts. That $2 million in recovered legal fees could have been plowed into educational efforts to help explain to parents how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal. Moreover, that $2 million in recovered industry legal fees does not account for the resources that state and local officials put into these regulatory efforts. So, we are talking about a much greater deadweight loss for society and taxpayers.

Oakland Wireless appears to be in trouble. Add it to the list.

[Actually, is anyone out there keeping a running tally of the muni failures? If so, let me know so I can just start linking to it instead of all the random blog links. ]

[Note: This is the third in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. This installment will examine the misguided logic of the Court's reasoning in Pacifica as it stood in 1978. Part 4 will then examine why that logic is even more misguided in light of modern developments.]

For the past three decades, regulation of television programming has been premised on the "pervasiveness rationale" as articulated in the landmark Supreme Court case FCC v. Pacifica Foundation. In Pacifica, in a 5-4 plurality decision, the Court held:

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.

In one portion of the decision, Justice John Paul Stevens, who authored the majority opinion, even referred to broadcast signals as an "intruder" into the home.

There were always serious problems with the "media-as-invader" logic of Pacifica.

During last night's NBA draft, ESPN basketball analyst Fran Fraschilla, analyzing the 20th pick by the Charlotte Bobcats of Frenchman Alexis Ajinca, a 7-foot center with a 7'-8" wingspan, said the NBA has some major issues drafting foreign players:

This is going to be very interesting. He may actually benefit from staying overseas an extra couple years. The interesting thing about foreign guys right now -- the value of the dollar versus the euro, being picked 20th and lower in the first round, really becomes an issue.

Forget $140-oil -- when the weak dollar pushes potential NBA basketball players back to the French A-League, you know we're in trouble.

Beyond what Jim Harper already said about it, I was searching for the right words to express how silly I find the far-fetched rhetorical B.S. being flung about to describe this quixotic new "Broadband for Everyone" crusade. And then I found this great little comment by Steve Boriss over at The Future of News blog. He really nails the utopian silliness that animates this movement in his essay, "Net neutrality proponents' ideals as contradictory as French Revolution's":

Government regulation always begins with a call from those who claim they are only trying to right some hard-to-argue-against wrongs, but whose consequences are poorly thought out. Today we learn of a new such party, InternetForEveryone.org, which has a mission so contradictory that it almost makes my head explode. Their ideals call to mind the French Revolutionists, who called for "liberty, equality, and fraternity," not realizing that liberty and equality are incompatible -- that making people equal requires liberty-suppressing force. The new group calls for guaranteed high speed Internet access for everyone (a basic right of all Americans, they say), lower usage prices, more competition, and more innovation. Tell me, if we force Internet providers to give access to everyone, then force them to charge less than the marketplace tells them they should, where will the money come from for innovation? And what would happen to the potential profits that might entice others to join in the competition? Guess it will have to come from taxpayers and that government will have to run the show. InternetForEveryone.org claims to be neutral on the net, but it is surely not neutral on government -- they want a lot more of it.

Exactly. It's 'something-for-nothing' economics meets utopian egalitarianism as applied to broadband. But, as Steve notes, there is no free lunch. Every time I debate one of the people or groups involved in this movement, I always ask questions like: What about incentives to invest and innovate? What role do they play in your model? Where is the risk capital going to come from to build these high-fixed cost networks going forward? How will those networks be upgraded over time? And so on.

And they never have any good answers. To the extent they have any answers at all, it always seems to come back to the idea of treating broadband networks like a lazy public utility. You know, because we've had so much success with those! And yet, this crowd seems wants to paint a revisionist history of public utilities and try to convince us that we are just ONE MORE muni fiber or muni wi-fi experiment away from getting it right! Uh-huh, sure we are. Meanwhile, taxpayers are bailing out those past failed experiments all over America right now.

The fundamental problem with the entire Net neutrality movement can be summarized as follows: They obsess about investment and innovation at the margin of networks but spend little time thinking about the preconditions for serious innovation and investment at the core of networks. Government micro-management ain't ever going to get us where we need to be in that regard.

[Note: This is the second in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, a general overview of the issue, is here.]

This morning I attended an excellent Freedom Forum conference on "Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later." At the event, Lili Levi of the University of Miami School of Law delivered a terrific address entitled "A Short History of the Indecency & Media Violence Wars." (Incidentally, she is also the author of a highly recommended paper on the topic that is available on SSRN: "The FCC's Regulation of Indecency."

Prof. Levi sketched out what she called the "5 Eras of FCC Indecency Enforcement." Below I will summarize the major developments / trends from each era that she outlined for us today:

Last week PFF co-hosted an event highlighting the crucial importance of immigration to the U.S. economy. At the half-day event with our partners at the National Chamber Foundation, I first interviewed Jason Riley of The Wall Street Journal and author of the new book Let Them In: The Case for Open Borders. Then five immigration experts discussed the policy and politics of high-end tech and science immigration. You can view the webcast here.

Maybe columnist George Will was watching. Writing from Palo Alto today, Will makes the pro-immigration case with characteristic eloquence:

Modernity means the multiplication of dependencies on things utterly mysterious to those who are dependent -- things such as semiconductors, which control the functioning of almost everything from cellphones to computers to cars . . . . Yet their nation's policy is the compulsory expulsion or exclusion of talents crucial to the creativity of the semiconductor industry that powers the thriving portion of our bifurcated economy. While much of the economy sputters, exports are surging, and the semiconductor industry is America's second-largest exporter, close behind the auto industry in total exports and the civilian aircraft industry in net exports.

The semiconductor industry's problem is entangled with a subject about which the loquacious presidential candidates are reluctant to talk -- immigration, specifically that of highly educated people. Concerning whom, U.S. policy should be: A nation cannot have too many such people, so send us your PhDs yearning to be free.

Instead, U.S. policy is: As soon as U.S. institutions of higher education have awarded you a PhD, equipping you to add vast value to the economy, get out. Go home. Or to Europe, which is responding to America's folly with "blue cards" to expedite acceptance of the immigrants America is spurning.

It's astonishing we are still debating this topic. More than a decade ago George Gilder was exposing the same self destructive behavior George Will fights today:

The underplaying of immigration as an economic force stems from a basic flaw in macroeconomic analysis. Economists fail to account for the indispensable qualitative effects of genius. Almost by definition, genius is the ability to generate unique products and concepts and bring them to fruition. Geniuses are literally thousands of times more productive than the rest of us. We all depend on them for our livelihoods and opportunities. . . .

Consider Intel Corp. Together with its parent, Fairchild Semiconductor, Intel developed the basic processes of microchip manufacture and created dynamic and static random access memory, the micro-processor, and the electrically programmable read-only memory. In other words, Intel laid the foundations for the personal computer revolution and scores of other chip-based industries that employ the vast bulk of U.S. engineers today.

Two American-born geniuses, Robert Noyce and Gordon Moore, were key founders of Fairchild and Intel. But their achievements would have been impossible without the help of Jean Hourni, inventor of planar processing; Dov Frohmann-Benchkowski, inventor of electrically erasable programmable ROMs; Federico Faggin, inventor of silicon gate technology and builder of the first microprocessor; Mayatoshi Shima, layout designer of key 8086 family devices; and of course Andrew Grove, the company's now revered CEO who solved several intractable problems of the metal oxide silicon technology at the heart of Intel's growth. All these Intel engineers -- and hundreds of other key contributors -- were immigrants.

The next Intels, the next Googles -- indeed, the next American century -- requires our openness to and recruitment of these "geniuses from abroad."

Next Thursday, July 3rd will mark the 30th anniversary of the Supreme Court's landmark First Amendment decision, FCC v. Pacifica Foundation. Sadly, but somewhat ironically, the anniversary of this decision comes just a few days after we lost America's greatest modern social satirist George Carlin, whose infamous "seven dirty words" monologue prompted the Supreme Court's Pacifica decision. After a Pacifica Foundation radio station aired Carlin's monologue and the FCC took action against that station, a court battle ensued regarding whether the agency had the authority to censor "indecent" content on broadcast radio and television stations.

Unfortunately, when the Supreme Court handed down its Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called "pervasiveness theory," which held that broadcast speech was "uniquely pervasive" and an "intruder" in the home, and therefore demanded special, artificial content restrictions.

Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the Pacifica decision in general. In part 2, I'll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I'll be highlighting some of the original deficiencies of the "pervasiveness doctrine." Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.

Global handset manufacturing giant Nokia has purchased the shares they didn't already own in Symbian, Ltd., the company formed in 1998 as a partnership among Ericsson, Nokia, Motorola and Psion and the developer of the Symbian mobile operating system, by far the world's leading OS for "smart mobile" phones with 67% of the market, followed by Microsoft on 13%, with RIM on 10% (source).

But wait, there's more (per Engadget)!
Here's where it gets interesting, though: rather than taking Symbian's intellectual private for Nokia's own benefit, the goods will be turned over to the Symbian Foundation, a nonprofit whose sole goal will be the advancement of the Symbian platform in its many flavors. Motorola and Sony Ericsson have signed up to contribute UIQ assets, while NTT DoCoMo (which uses Symbian-based wares in a number of its phones) will be donating code as well.

Other Symbian Foundation members include Texas Instruments, Vodafone, Samsung, LG, and AT&T (yep, the same AT&T that currently sells precisely one Symbian-based phone), so things could get interesting. The move clearly seems to be a preemptive strike against Google's Open Handset Alliance, LiMo, and other collaborative efforts forming around the globe with the goal of standardizing smartphone operating systems; the writing was on the wall, and Symbian didn't want to miss the train. Total cash outlay for the move will run Nokia roughly €264 million -- about $410 million in yankee currency.
Other reports note that the Symbian Foundation will eventually take Symbian open source, and that this move is as much as response to Apple's closed iPhone platform as it is to Gogole's open Android and LiMo platforms. (Although it is intriguing to note that AT&T, Apple's exclusive U.S. partner for the iPhone, is among the backers of the new Symbian Foundation, perhaps indicating that even AT&T is hedging its bets.)

The fact that we will soon see three open source platforms (counting Google's Android and LiMo) competing for market share provides yet another measure of the exceptionally high degree of competition in the wireless industry.

MIT's Technology Review has a great review of a new biography of Georges Doriot (Wikipedia) by Businessweek Editor Spencer E. Ante entitled, Creative Capital: Georges Doriot and the Birth of Venture Capital. Born in France, Doriot fought in World War I, then studied at Harvard Business School, served as director of the U.S. military's Military Planning Division during World War II as a brigadier general, and in 1946 launched American Research and Development Corporation (ARD) as the first publicly owned venture capital firm.

Doriot's legacy looms large today, even if his name is new to most:
Contemporaneously with ARD's watershed investment in [Digital Equipment Corporation], others began walking the trails Doriot had blazed: Arthur Rock (a student of Doriot's in the Harvard class of 1951) backed the departure of the "Traitorous Eight" from Shockley Semiconductor to form ­Fairchild Semiconductor in 1957, then funded ­Robert Noyce and ­Gordon Moore when they left ­Fairchild to found Intel; ­Laurance ­Rockefeller formed ­Venrock, which has since backed more than 400 companies, including Intel and Apple; Don ­Valentine formed Sequoia Capital, which would invest in Atari, Apple, Oracle, Cisco, Google, and YouTube.
Doriot himself would likely have felt at home among today's embattled and outnumbered regulation-skeptics in the technology policy community:
he opposed both the dirigiste political economy of his native France and the tax hikes and anticompetitive laws enacted in the United States under the New Deal. Such regulations, he maintained, arrogated to bureaucrats the function of the markets; their worst feature was that they let government lend money to failing businesses. Ante notes that a former colleague of Doriot's, James F. Morgan, recalled him as "the most schizophrenic Frenchman I've ever met"--devoted to his original land's wine, cuisine, and language even as "the French capacity to make very simple things complicated drove him nuts."

Couch potatoes of America, have no fear... Your friendly neighborhood super-regulators are about to swoop in and save you from the scourge of loud TV ads and "illegal" product placements! As we all learned in our high school Civics 101 classes, this is why the American Revolution was fought: We Americans have an unambiguous constitutional birthright to be free of the tyranny of "excessive loudness" during commercial breaks and pesky product promos during our favorite network dramas. (Seriously, it's right there in the footnotes to the Bill of Rights; you probably just missed it before.)

Rep. Anna Eshoo (D-Calif.) has the first problem covered. She and her House colleague Rep. Zoe Lofgren (D-Calif.) are proposing H.R. 6209, the "Commercial Advertisement Loudness Mitigation Act." (Oh, isn't that so cute! The "C.A.L.M. Act"! How very, very witty.) The CALM Act would address "volume manipulation" in TV ads by making sure that TV ads are not "excessively noisy or strident." (Strident! We Americans hate "strident" ads.) The bill would empower regulators at the Federal Communications Commission to take steps to ensure that "such advertisements shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and, the average maximum loudness of such advertisements shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany."

Clearly, this is valuable use of our regulators' time. I look forward to the day when I can visit the FCC and see my tax dollars at work as teams of bureaucrats closely monitor each episode of "Desperate Housewives" and "Swingtown" in search of such malicious volume manipulation during the commercial breaks. (Incidentally, where is the form I need to fill out to get that job? Heck, I'll take minimum wage pay to do this all day long.)

It is shocking to think that we have a presidential candidate who would make the private sector $5 poorer in order to make the government $1 richer.

That's economist Lawrence Lindsey's bottom-line assessment of Barack Obama's plan to raise the top marginal income tax rate and lift the cap on Social Security taxes. Obama's move would catapult the top marginal tax rate from 37.7% today all the way to 53% -- and that's before state and local income taxes.

Lindsey explains why raising top marginal tax rates yields little revenue but big downside distortions:

the economic well-being of the country is not measured by how much taxes the government can collect, or even the size of the deficit. Rather, it is measured by the country's productive capacity. Our theoretical entrepreneur's 11.2% decline in taxable income reflects both less effort on his part and a less efficient use of his income in order to avoid confiscatory tax rates. Or, to put it directly, Sen. Obama's plan would reduce an entrepreneur's after-tax profits by $70,000 - $56,000 in lost profits and $14,000 more in taxes - just to produce a net revenue gain to the government of $14,000.

But the tax hike story doesn't end there.

Obama has also proposed boosting the capital gains tax to 28%. Combine that with rising inflation, and you get a huge new tax on at-risk capital. Economist Michael Darda explains the risk to both the stock market and overall growth.

Capital gains taxes are set to rise to 20% from 15% in 2010 (with the dividend tax rate reverting to the top marginal income tax rate). Sen. Obama has proposed a bump in the capgains tax to 28% from 15%. A 28% capital gains tax, along with 4% headline inflation, would raise the effective tax rate on capital to 50% from 28%, and lower our model's stimulation of the forward P/E ratio to 12.1 from 15.3. This could cut the S&P 500 down by 15-20%, which would increase the cost of capital, lower the capital-to-labor ratio, retard trend productivity growth, and lower income and wage gains across the country. It simply makes no sense in this context. This is a significant risk looming over the market at a particularly inopportune time.

Effective marginal tax rates on both income and capital gains could thus explode north of 50% in the next few years. In today's hyper-competitive supply-side world, we can't afford such an enormous leap backwards.

Or as Nobel prize winner Bob Mundell says, "I look upon the United States still as the main sparkplug of economic growth in the world." It thus follows, he says, that rescinding the Bush tax cuts "would be devastating to the world economy."

It is shocking to think that we have a presidential candidate who would make the private sector $5 poorer in order to make the government $1 richer.

That's economist Lawrence Lindsey's bottom-line assessment of Barack Obama's plan to raise the top marginal income tax rate and lift the cap on Social Security taxes. Obama's move would catapult the top marginal tax rate from 37.7% today all the way to 53% -- and that's before state and local income taxes.

Lindsey explains why raising top marginal tax rates yields little revenue but big downside distortions:

the economic well-being of the country is not measured by how much taxes the government can collect, or even the size of the deficit. Rather, it is measured by the country's productive capacity. Our theoretical entrepreneur's 11.2% decline in taxable income reflects both less effort on his part and a less efficient use of his income in order to avoid confiscatory tax rates. Or, to put it directly, Sen. Obama's plan would reduce an entrepreneur's after-tax profits by $70,000 - $56,000 in lost profits and $14,000 more in taxes - just to produce a net revenue gain to the government of $14,000.

But the tax hike story doesn't end there.

Obama has also proposed boosting the capital gains tax to 28%. Combine that with rising inflation, and you get a huge new tax on at-risk capital. Economist Michael Darda explains the risk to both the stock market and overall growth.

Capital gains taxes are set to rise to 20% from 15% in 2010 (with the dividend tax rate reverting to the top marginal income tax rate). Sen. Obama has proposed a bump in the capgains tax to 28% from 15%. A 28% capital gains tax, along with 4% headline inflation, would raise the effective tax rate on capital to 50% from 28%, and lower our model's stimulation of the forward P/E ratio to 12.1 from 15.3. This could cut the S&P 500 down by 15-20%, which would increase the cost of capital, lower the capital-to-labor ratio, retard trend productivity growth, and lower income and wage gains across the country. It simply makes no sense in this context. This is a significant risk looming over the market at a particularly inopportune time.

Effective marginal tax rates on both income and capital gains could thus explode north of 50% in the next few years. In today's hyper-competitive supply-side world, we can't afford such an enormous leap backwards.

Or as Nobel prize winner Bob Mundell says, "I look upon the United States still as the main sparkplug of economic growth in the world." It thus follows, he says, that rescinding the Bush tax cuts "would be devastating to the world economy."

UPDATE: Don Luskin of Trend Macro makes another good point:

Worst of all, even the small contribution to Social Security solvency that Mr. Obama's plan might make is entirely illusory. In fact, the more taxes his plan collects, the worse Social Security's long-term situation gets. That's because all plans based on collecting taxes and saving them in the Social Security Trust Fund for future benefit payments rely on the U.S. government being able to redeem the Treasury bonds that trust fund holds.

There's only one place that the money to redeem those bonds can come from: taxes. So ironically, any tax dollars collected today will have to be collected all over again - plus interest. You like the idea of paying more taxes today for Mr. Obama's Social Security plan? Then just wait 20 years or so, because you'll get to pay more taxes all over again.

Obama's tax bomb is not the way to sustain America's fragile global lead in entrepreneurship and innovation.

As James Gattuso noted last week, the XM-Sirius merger review has now entered the realm of the theater of the absurd. It's not just that the FCC has lapped its 180-day merger review shot clock two-and-half times already (we're over 450 days into the proposed merger, after all), but it's the fact that there seems to be no end to the list of conditions that some regulatory advocates or policymakers want to extort out of the firms. After all, according to the latest press reports, the FCC has already managed to extract the following "voluntary" concessions out of them: a price cap on programming for potentially 3 years; a la carte programming requirements; new interoperability standards for satellite radio receivers; capacity set asides of something like 4 percent of their spectrum capacity (apparently about 12 channels) for non-commercial educational programming; and potentially the lease of another 4 percent of capacity to minority or women-owned enterprises.

These are astonishing concessions, and one is forced to wonder if the merger was really worth it and whether the merged firm will really be able to survive the intensely competitive media landscape it finds itself in with such constraints in place. Let's not forget, although both firms have grown their subscriber rolls, they have NEVER found a way to turn a profit! And new audio options continue to pop up seemingly every week and bombard our ears with evermore news, information and entertainment.

Alas, all those concessions appear not to be enough to satisfy some on Capitol Hill. According to today's Washington Post:

Senior members of the Congressional Black Caucus yesterday criticized a compromise plan for the proposed merger of the XM and Sirius satellite radio companies, saying the deal does not provide enough opportunities for minority-owned programming.

Federal Communications Commission Chairman Kevin J. Martin said over the weekend that he would support the merger after XM Satellite Radio Holdings and Sirius Satellite Radio voluntarily agreed, among a series of other concessions, to lease 4 percent of their radio spectrums, or 12 channels, for programming run by minorities and women.

Members of the black caucus on Capitol Hill have been arguing for the merged company to lease five times that amount of spectrum to companies owned by racial minorities. Short of that, caucus members have warned in letters to the commission and meetings with Martin, they would oppose the merger.
Five times that amount? Wow, there's a pound of flesh and then's a pound of flesh! They're talking about a massive capacity set-aside that would leave the merged entity scrambling to find a way to add more capacity or, more likely, booting existing channels off the air to make room for politically preferred options.

What makes this all so silly, perhaps even outrageous, is that the satellite radio industry didn't even exist 10 years ago--wasn't even launched until late 2001, in fact--and yet here we are already trying to regulate it like the broadcast industry. Set-asides, quotas, capacity requirements, programming mandates, etc... that's the language of analog-era broadcast regulatory law. You know... the body of law that was built on the theory of media scarcity!! And so as more competition comes along we end up quickly boxing it into the old, unjust regulatory paradigm. Oh, the absurdity of it all! [And just wait, speech controls come next! If they can mandate set-asides and other programming requirements, then they can wash out Howard Stern's mouth with a bar of regulatory soap as well.]

The rise of satellite radio has given us choices we couldn't image 10 years ago. That's what makes the plea for even more set-aside capacity particularly silly. I wonder, have these lawmakers even bothered to take a look at what's on satellite radio today? It seems to me that the industry is doing a very nice job satisfying unique nitches that were going under-served in the past. Can you name a musical genre that is not represented on satellite radio today? Moreover, in many cases, each genre has multiple sub-genres.

Of course, the central planners in Congress and at the FCC think they can do a better job of programming the radio dial than the people who work in this industry. So, what are we going to get if they get their way? You need do nothing more than turn on cable or satellite TV and look at all those silly channels occupying prime real estate between roughly channels 12-30 on the dial. What's that you say, you've never looked at those channels before? Me neither! Those are the dreadfully awful "public access channels" that roughly 0.0000000000001% of the view public consumes. I doubt that the policymakers who mandate that those channels be there even bother watching them!

Of course, as overall TV channel capacity has grown, it has become somewhat easier for cable and satellite operators to live with those "must carry" public access channels. It doesn't make it right that those media providers are forced to carry channels that no one demands, however. Regardless, it would be extremely difficult for satellite radio providers to absorb similar mandates without probably forcing some other, existing channels off the air. You know, those channels that actually have some demand!

But hey, who cares about what the public really wants. The Congress critters and unelected FCC bureaucrats know what's best for us, right? Perhaps they should just nationalize the entire satellite radio spectrum and let every member of Congress have their own channel as a soapbox. After all, the people don't really want 24/7 music of every possible genre, or every sports league and all their games aired live, or every type of news programming imaginable, or Howard Stern or Oprah or Martha Stewart, or ...

Oh, forget it.

Following our own series of articles and reports on the topic, Cisco continues to do interesting work estimating the impact of video on Internet traffic. With the release of two detailed new reports, updating last year's "Exabyte Era" paper, they've now created a "Visual Networking Index."

Cisco's Internet traffic growth projections for the next several years continue to be somewhat lower than ours. But since their initial report last August, they have raised their projected compound annual growth rate from 43% to 46%. Cisco thus believes world IP traffic will approach half a zettabyte (or 500 exabytes) by 2012.

My own projections yield a compound annual growth rate for U.S. IP traffic of around 58% through 2015. This slightly higher growth rate would produce a U.S. Internet twice as large in 2015 compared to Cisco's projections. Last winter George Gilder and I estimated that world IP traffic will pass the zettabyte (1,000 exabytes) level in 2012 or 2013.

For just one example of the new applications that will drive IP traffic growth, look at yesterday's announcement by Advanced Micro Devices (AMD). Partnering with my friend, the young graphics pioneer Jules Urbach, AMD previewed its "Cinema 2.0" project, which combines the best of cutting edge technology and thinking from video games, movies, graphics processors, and computer generated imaging to create new kinds of interactive real-life real-time 3D virtual worlds, all powered not by supercomputers but simple video cards that you find in PCs and Macs, or from servers in the "cloud."

A photorealistic 3D robot and city scene rendered in real-time. (AMD; BusinessWire)

The huge increases in bandwidth and robust traffic management needed to deliver these new high-end real-time services continue to show why net neutrality regulation and other artificial limitations on traffic management are complete non-starters from a technical perspective.

Almost 30 years ago World Bank economist Keith Marsden published a groundbreaking study comparing the growth rates of low-tax and high-tax nations. Marsden found that the low-tax nations grew faster. Perhaps not a surprise. But Marsden also found that the low-tax nations increased their government spending three times faster than the high-tax nations. How? Because the low-tax nations grew some six times as fast.

Now, Marsden is back with a new study for Britain's Centre for Policy Studies called "Big, Not Better?: Evidence from 20 countries that slim governments work better. "

When Marsden first compared the high-tax and low-tax nations three decades ago, the worldwide tax-cutting revolution was just commencing. Ronald Reagan and Margaret Thatcher were the leading Western innovators, and although it was not fully appreciated at the time, China's Deng Xiaoping was watching -- and emulating -- the shining example of Hong Kong. So it's fitting, after several decades of global tax-cutting catalyzed today's global boom, to revisit the high-tax/low-tax debate.

Marsden's key finding, now as then, will confound not just high-tax liberals but many "starve the beast" conservatives as well.

Faster economic growth in the first [low-tax] group also generated a more rapid increase in government revenue, despite (or rather, because of, supply-siders suggest) lower overall tax burdens.

James Joyner notes the relative dearth of political blogs among the top sites in the blogosphere. Many technology blogs, on the other hand, and perhaps not surprisingly, are near the top.

According to Technorati, HuffingtonPost still reigns at No. 1. But at least 7 of the top 10 are more or less tech blogs.

1. Huffington Post
2. TechCrunch
3. Gizmodo
4. Engadget
5. Boing Boing
6. Lifehacker
7. Ars Technica
8. icanhascheezburger.com
9. Mashable
10. ReadWriteWeb