Thursday, April 30, 2015

Maria Pallante Supports the Property Rights of Musicians and Artists

I haven’t had a chance to review the actual testimony today of Maria Pallante, director of the U.S. Copyright Office and Register of Copyrights, before the Senate Judiciary Committee, only Broadcasting & Cable’s report of her testimony by John Eggerton.

But according to the B&C report, Ms. Pallante made several important points with which I agree.

She supported some form of fix so that artists holding the rights to pre-1972 sound recordings can be compensated for performances of these works. As my colleague Seth Cooper has explained here and elsewhere, state courts – quite correctly – recently have ruled in several different cases that artists must be compensated under various existing state law property rights-like remedies for performance of pre-1972 recordings. But Ms. Pallante is right to suggest that Congress should consider amending the Copyright Act to provide federal protection as well.

Ms. Pallante’s testimony also apparently urges Congress to remedy the current gap in the law whereby broadcasters escape payment of compensation for transmitting sound recordings. This exemption from payment of royalties for using the intellectual property of the music artists doesn’t make sense. Representatives Marsha Blackburn and Jerrold Nadler have introduced the “Fair Play Fair Pay Act” which would create a public performance right applicable to broadcasters for their transmission of copyrighted sound recordings. Seth Cooper, in this blog commending the Blackburn-Nadler bill, explains why broadcasters should not continue to be treated with favoritism vis-à-vis other technological platforms that are required to pay for use of copyrights recordings. Ms. Pallante’s support for considering redress for this inequity is commendable.

According to John Eggerton’s reporting, Ms. Pallante also will urge Congress to make unauthorizing streaming of content a felony just like the unauthorized downloading of copyrighted content. There may well be disagreements concerning the degree of culpability, and, therefore, the severity of punishment that is appropriate, for those who knowingly commit theft of intellectual property in different circumstances. But there shouldn’t be disagreement that those who knowingly commit such crimes should be held responsible. So, it is necessary and appropriate for Director Pallente to remind us that theft of intellectual property online – like theft of property wherever it occurs –is a serious crime.

It is entirely fitting that Ms. Pallante’s testimony takes place close to World Intellectual Property Day, celebrated each April 26. And it is still close enough to April 26 to remind you of the series of scholarly papers my colleague Seth Cooper and I have authored in our series of works addressing the constitutional foundations of intellectual property. If you’re interested in delving more deeply into foundational principles relating to the protection of intellectual property rights, I commend these papers to you.

Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Intellectual Property," Perspectives from FSF Scholars, Vol. 8, No. 13 (2013).

Randolph J. May and Seth L. Cooper, "Reasserting the Property Rights Source of IP," Perspectives from FSF Scholars, Vol. 8, No. 17 (2013).

Randolph J. May and Seth L. Cooper, "Literary Property: Copyright's Constitutional History and Its Meaning for Today," Perspectives from FSF Scholars, Vol. 8, No. 19 (2013).

Randolph J. May and Seth L. Cooper, "The Constitution’s Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights,” Perspectives from FSF Scholars, Vol. 8, No. 20 (2013).

Randolph J. May and Seth L. Cooper, "The 'Reason and Nature' of Intellectual Property: Copyright and Patent inThe Federalist Papers," Perspectives from FSF Scholars, Vol. 9, No. 4 (2014).

Randolph J. May and Seth L. Cooper, "Constitutional Foundations of Copyright and Patent in the First Congress," Perspectives from FSF Scholars, Vol. 9, No. 18 (2014).

Randolph J. May and Seth L. Cooper, "Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jeffersonian Principles," Perspectives from FSF Scholars, Vol. 9, No. 25 (2014).

Randolph J. May and Seth L. Cooper, "Intellectual Property Rights Under the Constitution's Rule of Law,"Perspectives from FSF Scholars, Vol. 9, No. 31 (2014).

Randolph J. May and Seth L. Cooper, "Reaffirming the Foundation if IP Rights: Copyright and Patent in the Antebellum Era," Perspectives from FSF Scholars, Vol. 9, No. 38 (2014).

Randolph J. May and Seth L. Cooper, “Adding Fuel to the Fire of Genius: Abraham Lincoln, Free Labor, and the Logic of Intellectual Property, ” Perspective from FSF Scholars, Vol. 10, No. 2 (2015).

Wednesday, April 29, 2015

Prince George's County Council Budget Hearing

On April 28th, I had the privilege of testifying before the Prince George’s County Council during its fiscal year 2016 budget hearing. I warned the County Council that its proposed budget includes a 50 percent increase in telecommunication taxes that would negatively affect the County residents.

Not only would this tax increase require Prince George's County residents to pay the second highest wireless tax and fee burden in the country (when including state and federal taxes), but it would disincentivize wireless Internet Service Providers from investing and innovating within the County. This proposal should be rejected because this tax increase would also greatly and negatively impact poor residents who want to connect to the Internet.

Check out this blog for more on the proposal.

Tuesday, April 28, 2015

Could the FCC Be Listening to the Market Talk?

By Gregory J. Vogt, Visiting Fellow
The FCC has received criticism from a number of commenters regarding incentive auction procedures the agency proposed in a December 2014 Public Notice. Given that some procedures in the Notice were inconsistent with a market-oriented auction design, there now is some welcome news that the FCC may be listening more closely to the market.
Until now, a majority of Commissioners seemed too dismissive of market concerns when they proposed complex auction procedures designed to skew results toward favored bidders, i.e., any other bidder other than AT&T or Verizon. The recent intimations, if they turn out to be true, would be better news for consumers, who voraciously are demanding more bandwidth for mobile broadband services which the incentive auction can remedy in part. Consumers should hope that a majority of FCC Commissioners listen more closely to the market talking.
The incentive auction is designed to permit broadcasters voluntarily to give up over-the-air broadcast spectrum in the “reverse” portion of the auction in exchange for part of the proceeds in the “forward” portion of the auction among mobile broadband providers. That auction is currently scheduled for early 2016.
The December 2014 Notice’s proposed auction procedures were roundly criticized, including by two FCC Commissioners, in particular for proposals that would establish “dynamic reserve pricing” and define “unencumbered” spectrum. Chairman Wheeler reportedly went off script at the National Association of Broadcasters’ (NAB’s) annual trade show to indicate that “we got your message” concerning complaints about those two issues. This remark appeared to be in line with comments made earlier in the week by FCC incentive auction staff as well as Commissioner O’Rielly. The President and CEO of the NAB, Gordon Smith, was encouraged by Wheeler’s remarks that the FCC would consider simplifying the rules and let the market function in the auction process.
I, too, am encouraged by the Chairman’s remarks, but only concrete action will prove whether the Commission is actually listening to the market. The FCC should continue its long-standing policy to auction spectrum in accordance with free market principles. Free market auctions optimize the prices for limited spectrum and ensure that it is efficiently allocated to the highest and best use. Such a result is even more critical to the incentive auction because it is intended to encourage significant voluntary contributions of spectrum by broadcasters, which can then be repurposed to meet the critical consumer need for mobile broadband.
Focusing on the need for market-based incentives in the incentive auction is critical. Broadcasters are now more interested in this auction, particularly after the unprecedented values achieved in the recent AWS-3 auction. Some analysts now estimate (summarized here) that the incentive auction may yield $60 to $80 billion. The Congressional Budget Office underscored the critical nature of auction procedure decisions when it estimated a wide potential range, from $10 to $45 billion, based largely on the auction’s unprecedented and complex nature. These estimates are painting a rosier picture for the incentive auction’s success.
The two key issues highlighted by the Chairman’s recent remarks are:
First, a “dynamic reserve price” is a somewhat euphemistic term used in the Notice to describe a methodology to reduce the going-in price for certain spectrum to address “anomalies” or “hold outs.” Although the Commission decided last summer to set going-in reverse auction prices, the anti-market impact of artificially manipulating potential prices undermines broadcaster incentive to volunteer spectrum, which disserves the aim of the auction and ultimately consumer interests. Broadcasters have already identified 1100 TV stations potentially impacted. The process complicates the auction and unfairly limits broadcaster gains.
Second, the Notice also proposed to define “unimpaired” spectrum, i.e., spectrum in the national market that may not be used by up to 20 percent of the population. The 20 percent threshold is far too high, creating serious questions on the value of such “unimpaired” spectrum. A market-based design abhors the creation of spectrum of uncertain value, where spectrum is potentially unusable in some large urban markets where spectrum is needed most. The FCC should offer only unimpaired spectrum (in accordance with a reasonable definition outlined above) to all bidders in order to simplify the auction, increase market-oriented bidding, and thus improve bidding results.
I’ve said before, here and here, that creation of “reserve spectrum” available only to favored large, well-capitalized international bidders contains unacceptable risks that the incentive auction will fail. But given that the FCC has already made the erroneous decision to create “reserve spectrum” for a favored few, it should not make matters worse by adopting unworkable “dynamic reserve pricing” or create an unreasonably high threshold for defining unimpaired spectrum. And it certainly should reject the renewed call to increase the size of the “reserve spectrum.”
Both the FCC and Congress have already established the main goal of the incentive auction: to encourage maximum broadcaster participation. The Chairman’s recent indication that the FCC could be rethinking dynamic reserve pricing and the definition of “unencumbered” spectrum are welcome news for consumers. Now a majority of the Commissioners just need to listen to the market talk.

Wednesday, April 22, 2015

Maryland's Ridesharing Legislation Is Better Than Prohibition

On April 14th, the Maryland Senate followed the House of Delegates in passing legislation, which would legalize commercial ridesharing applications like Uber and Lyft, making Maryland the tenth state to pass such legislation. Now, the legislation waits for Governor Larry Hogan’s signature to become a law.
I commend Maryland legislators for understanding that the emergence of the new “sharing economy” is in the interests of consumers and the economy as a whole. I commend them for realizing that new innovative technologies are emerging to compete with traditional business models. I also commend Maryland legislators for not giving in to the interests of taxicab commissions by issuing an outright prohibition on ridesharing services. And I appreciate that the legislation bans Maryland municipalities from levying taxes or additional regulations on ridesharing companies or any participants in ridesharing markets. (Although, it has been reported that municipalities could add a $0.25 surcharge fee on all rides. See here and here.)
Having said all this, I would not call this legislation a free-market approach to the sharing economy. The provisions require “transportation network companies” – as the legislation defines ridesharing companies - to collect, file, and register information, creating a barrier for new startups to emerge in the ridesharing market.
For example, a transportation network company must register with the Public Service Commission, create an application process for individuals to apply for registration as a transportation network operator (driver), maintain a current registry of drivers and their personal information, and submit proof to the Commission that the company is registered with the State of Maryland – just to name a few of the requirements.
Uber and Lyft already keep driver information on file in order to provide transparency and accountability to their consumers. So this is not a costly requirement, right? Wrong. Uber and Lyft are already well-established and likely can afford to cover these costs. But a new ridesharing start-up, on the other hand, may not have the capital to provide this type of immediate transparency, thus they will not be able to operate in Maryland.
I do not know how long the registration and approval process will take for a “transportation network company” to become certified with the Commission. But if it has taken several years for Maryland legislators to recognize the benefits of ridesharing because the interests of taxicab commissions have hindered the process, it concerns me that new ridesharing start-ups will be disadvantaged at the hands of well-established companies like Uber and Lyft. In other words, these rules could incentivize successful ridesharing companies like Uber and Lyft to lobby Maryland’s Public Service Commission to reject the entry of potential competitors.
Additionally, the reason that ridesharing companies must maintain personal information about their drivers for the Public Service Commission is because the legislation also has a long list of regulatory standards for drivers regarding age, criminal background, and vehicle compliance. The standards that the State would require might be in the interest of public safety, and they are likely similar to the standards that Uber and Lyft administrators already conduct when hiring drivers. But it seems unnecessary and costly for both the respective ridesharing company and the Commission to perform a background investigation on each driver. Instead, a case-by-case investigation of instances of consumer harm would be warranted to insure that ridesharing companies have followed the State’s standards.
Interestingly, taxicabs are regulated at the county-level in Maryland, therefore ridesharing drivers might actually be subjected to regulations that taxicabs drivers are not. Yet, even if drivers of ridesharing companies and taxicab drivers were subjected to the same regulations - which would be a fair way to “level the playing field,” it does not necessarily mean the public is any safer. Competition, not regulation, generally provides the most benefits to consumers, whether those benefits come in the form of lower prices, more convenience, public safety or healthy environments. As Randolph May and I stated in our Perspectives from FSF Scholars entitled “The Sharing Economy: A Positive Shared Vision for the Future:”
If purveyors of sharing applications engage in harmful, unhealthy, or unsafe activities, competition is probably the most important regulatory mechanism to address any real problems. In competitive markets, poor consumer satisfaction generally means that a company will lose market share, or even fall out of the market. If a company is not operating safely or if it is putting its users in unhealthy conditions, a competitive market allows for unsatisfied consumers to choose alternatives.
The legislation does lift some of the burdensome licensing regulations for taxicabs, but other regulations that remain appear unnecessary. Rather, many of these regulations appear to have been adopted to “level the playing field” between ridesharing companies and taxicab companies. In our paper, Randolph May and I stated:
If the laws or regulations applicable to the existing incumbent businesses no longer make sense today, they should be changed. It always harms consumers when public policymakers attempt to “level the playing field” by subjecting entities to regulatory restrictions that are not needed. The proper way to respond to “level the playing field” claims is to remove unnecessary regulations wherever they apply, not to expand them to new entities.
It is fair to apply the same level of regulation to both taxicabs and ridesharing companies, but the best way to “level the playing field” is to deregulate down and open the market to contestability and competition – not regulate up as this legislation would do.
Despite all of this, a regulated ridesharing market that makes room for new entrants is still better than one based on prohibitions that render new entrants unlawful.

Friday, April 17, 2015

Maryland's Prince George's County Proposes to Increase Wireless Taxes

Just a week or so after the Florida House of Representatives passed a bill which would reduce cellphone taxes, a County Executive in Maryland’s Prince George’s (PG) County proposes the opposite. County Executive Rushern Baker proposed a budget which includes a 50 percent increase in telecommunications taxes.
If passed, PG County residents would see their landline, television, and wireless tax rates go from 8 percent to 12 percent. When factoring in state and federal taxes, PG County residents would pay a total wireless tax and fee burden of 26 percent, which would be second in the country to only Chicago residents. Policymakers throughout the United States – including PG County - should instead work to lower tax rates as a means to encourage innovation and economic growth.
Additionally, lowering wireless taxes reduces prices for consumers and subsequently increases demand and competition in the wireless market. This expands the consumer base and oftentimes increases tax revenue for the jurisdiction as more consumers contribute to the pot.
I understand Prince George’s County wants to raise revenue, but a regressive wireless tax is not the way to go about it. Cutting wireless taxes, on the other hand, would substantially benefit the low-income PG County residents considering that over 56 percent of all poor American adults had only wireless Internet service as of December 2013. (This percentage has likely increased as wireless networks and wireless plans have become more available.) Taxes on Internet access should be kept as low as possible to push prices to an affordable level so every willing consumer can get online.
Wireless networks are rapidly becoming the future of broadband throughout the United States, but high tax rates slow down the pace of deployment of wireless infrastructure. The reductions in the quantity of service demanded by consumers decrease the incentive for providers to invest in infrastructure.

The transformation in wireless networks has been incredible over the past ten or more years (2G, 3G, and 4G) as more and more consumers have demanded higher quality broadband services. For this progress to continue, state and local governments should emulate Florida’s recent legislation and substantially decrease the rates of wireless and telecommunications taxes.

Thursday, April 16, 2015

Is the FCC Chairman Considering Going After Google?

Now that European Union regulators have formally accused Google of abusing its dominance in the online search market, inside sources say Federal Communications Commission Chairman Tom Wheeler is considering whether the FCC also should act to curb alleged abuses of the search giant’s market power here at home. 

At the core of the EU’s case against Google is the question of whether Google’s secret search algorithms are skewed in a way that disadvantage Google’s competitors and favor its own business segments. In bringing the charges, the EU regulators stated: “The Commission is concerned that users do not necessarily see the most relevant results in response to queries – to the detriment of consumers and rival comparison shopping services, as well as stifling innovation.”

In other words, the EU is concerned that Google, controlling approximately 90% of the online search and search advertising market in EU countries, is acting in a non-neutral fashion to the detriment of consumers and its smaller online rivals, or potential rivals. Although Google only controls about 67% of the online search market in the U.S., Chairman Wheeler is said to be concerned that the dominant Internet giant, or “edge provider” in FCC parlance, may be using its secret search algorithms to act in a “non-neutral” biased fashion to disadvantage its online rivals and potential competitors.
In fact, FCC insiders say that Wheeler is concerned not only about the impact of Google’s actions on Google’s struggling existing competitors, but also about the adverse impact on the “next Google,” the one still in the garage. After all, for many years Google, a long-time staunch proponent of new FCC “net neutrality” mandates for Internet service providers, proclaimed that, in light of its own powerful market position, it advocated adoption of net neutrality mandates not because it was concerned about harm to its own position. Instead, Google declared, early and often, and selflessly according to those experienced in the curious ways of Washington, that it was concerned only about the “next Google.”
Despite Google’s well-known and documented close relationships with those in high places in the Obama Administration, sources say Wheeler may be undeterred. These sources say he is now prepared to resist any pressures exerted by President Obama to back off – bolstered by his belief that Google has declared many times in public, and even in private meetings, that its main concern, truly, is protecting the “next Google.” Those on the inside of the agency bureaucracy say Wheeler apparently is now committed to the ideal of ensuring neutrality and non-discrimination throughout the entire Internet ecosystem.
When a coterie of top-level staffers met with Chairman Wheeler and questioned whether the Commission would want to test its authority to investigate Google’s allegedly harmful discrimination resulting from the search giant’s secret algorithms, he supposedly brushed aside these concerns. According to sources, Wheeler maintains that, now that the Commission has adopted its 300-page order, with its 1777 footnotes, implementing net neutrality mandates, the agency has a sound basis for extending its neutrality and non-discrimination mandates to the edge providers, certainly at least to dominant ones such as Google.
Wheeler reportedly said that Google likely is subject to the neutrality mandates under the Communications Act’s Title II common carrier provisions because some of its services, such as its ubiquitous messaging and chat services, fall within anyone’s ordinary understanding of regulated “telecommunications.” And Google is now entering markets around the country as an actual broadband Internet service provider in competition with other broadband ISPs, such as Comcast and AT&T, that are now classified as regulated “telecommunications” providers under the FCC’s net neutrality order.
What’s more, at the meeting with his staff, Wheeler explained that, aside from agency jurisdiction under Title II, the FCC possesses authority under Section 706 of the Communications Act to require Google to cease its allegedly harmful discriminatory practices. According to the informed sources, Wheeler is adamant that the Commission’s reach under Section 706 extends to Google because the search giant’s actions impeding the “next Googles” will adversely impact broadband deployment and adoption. In other words, Google’s non-neutral actions strike at the very heart of the “virtuous cycle” theory of investment and innovation.
Apparently, when a top staffer suggested that it might not be wise to test Section 706 ’s jurisdictional reach even while the Commission’s net neutrality order is subject to court review, Wheeler reminded her that the major ISPs themselves – admittedly under the threat of potential Title II regulation – have accepted a broad reading of the Commission’s authority under Section 706.
The sources said that Wheeler reminded those in attendance that the main virtue of the “virtuous cycle” theory upon which the Commission’s expansive view of its Section 706 authority depends is the downright appealing nature of the slogan.
And, then, before abruptly ending the meeting, Chairman Wheeler added this:
“Let’s not forget Google’s own appealing slogan, ‘Don’t Be Evil.’ I don’t see how any company with a slogan like ‘Don’t Be Evil’ can come in here and argue against any actions we take that I think are needed to promote the virtuous cycle. That would be like calling me evil, and I’m not going to stand for it – no matter how well-connected Google is over at 1600 you-know-where!”
[IMPORTANT NOTE: The sources relied upon for this blog were in my head, not at the FCC’s headquarters building. For many of the same reasons that I oppose the FCC’s strict net neutrality mandates, based on what I know now, I am not in favor of regulating Google’s search business here in the U.S., and I am concerned about the EU’s action. But regardless of what I may think about regulating Google, it is more likely now than it was before adoption of the FCC’s most recent net neutrality order that Google and other major “edge providers” will be regulated by the FCC in the future.]

Wednesday, April 15, 2015

Sound Recordings Copyright Bill Would Better Secure Rights, Reduce Inequities

The basic right of music authors and producers to the fruits of their labors is secured by copyright. The Constitution's Article I, Section 8 IP Clause gives Congress the responsibility to ensure that the copyrights of authors and producers of creative works are secured.
But in some respects, existing federal law provides inadequate and unequal copyright protections in sound recordings. And in other respects, federal law provides no copyright protections at all for sound recordings. Newly-introduced legislation in Congress would implement overdue copyright reforms for sound recordings. If enacted, the legislation will better secure those rights and bring the law into closer alignment with the Constitution.
On April 13 the Fair Play Fair Pay Act of 2015 was introduced in Congress. Sponsored by Rep. Jerrold Nadler and co-sponsored by Rep. Marsha Blackburn, the Fair Play Fair Pay Act (H.R. 1733) includes a handful of provisions that would put copyright in sound recordings on more of a free market footing. The bill's provisions would eliminate favoritism towards certain kinds of technology platforms. Such favoritism results in copyright holders receiving either no royalties or royalties significantly below market value for public performances of their sound recordings.
Included in the Fair Play Fair Pay Act - H.R. 1733 - are three important reforms for copyright in sound recordings:
H.R. 1733 finally ends terrestrial radio broadcasters' free-rider exemption from paying royalties for transmitting copyrighted sound recordings. Existing federal law specially privileges over-the-air radio broadcasting over competitors by permitting AM/FM transmission of copyrighted sound recordings without any need to obtain copyright holders' consent or pay royalties. This gives broadcast radio stations an unfair advantage over commercial music services reliant on other transmission technologies that must obtain consent or pay royalty rates. It is also an inequitable deprivation of rights for the owners of sound recordings. Under H.R. 1733, radio broadcasters would have to respect performance rights in sound recordings by negotiating with copyright holders or paying rates according to the "willing buyer/willing" seller standard (discussed below).
H.R. 1733 ensures that cable and satellite video services playing copyrighted sound recording pay copyright holders royalties approximating market value. Current federal law applies different royalty rate standards to different service technologies. Cable and satellite video services are subject to the so-called 801(b) rate standard, which misguidedly is calculated to "minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices." We have elsewhere criticized the Section 801(b) standard, which results in royalty rates set well below market value. H.R. 1733 would end the disparate rate regime. The bill would require cable and satellite video services transmitting copyrighted sound recordings to either negotiate with copyright holders or pay royalties according to the "willing buyer/willing seller" standard applicable to non-interactive Internet-based digital music services like iHeartRadio, Pandora, and Spotify. The "willing buyer/willing seller" standard defines "reasonable" rates, as payments that "most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller." In other words, the "willing buyer/willing seller" standard at least attempts to approximate market values in order to secure to copyright holders the returns they deserve.
H.R. 1733 recognizes copyrights in sound recordings made prior to 1972. Federal law does not recognize public performance copyrights in music recordings made before early 1972. Of course, recent judicial rulings strongly indicate that state common law protects public performance rights in pre-72 sound recordings. Under H.R. 1733, public performance copyrights in sound recordings would be recognized in federal law. According to the bill, music service providers seeking to transmit such recordings must either negotiate royalties with the copyright holders or pay royalties according to the willing buyer/willing seller standard applicable to music services transmitting post-72 sound recordings.
The Fair Play Fair Pay Act includes carve-outs to keep royalty rates to an administratively simple, nominal amount for small, local radio broadcast stations as well as for public radio stations. A complete royalty carve-out is also provided for both religious services and non-incidental uses. In addition, H.R. 1733 includes provisions for recognizing industry custom for processing payouts of royalties to copyright holders of sound recordings through an entity designated by the Copyright Royalty Board – that is, through SoundExchange. This aspect of the H.R. 1733 is similar to the Allocation for Music Producers Act (H.R. 1457), which was introduced in March by sponsor Rep. Joseph Crowley and co-sponsored by Rep. Tom Rooney.

In sum, the Fair Play Fair Pay ActH.R. 1733 – takes several steps in the right direction for reforming copyright in sound recordings. The bill would secure stronger and broader protections of the rights of copyright holders. It would establish an across-the-board standard for royalty rates intended to mimic market outcomes. Also, the bill would reduce the incidents of favoritism and free-riding that exists under current copyright law. Certainly, Congress should give this legislation a prompt fair hearing.