AT&T’s General Jim Cicconi Surrenders To Genachowski At Appomattox Court House.

We remember the surrender of General Robert E. Lee at the Battle of Appomattox Courthouse as the end of the Civil War, despite the fact that Confederate forces remained in the field for several weeks thereafter. The announcement by AT&T and Deutsche Telekom (DT) that they have told the Federal Communications Commission (FCC) to dismiss their application to transfer T-Mo to AT&T “without prejudice” is rather similar. To quote Craig Moffett: “the fat lady hasn’t started singing yet, but she’s holding the mike and the band is about to play.” (We’ll ignore that the fat lady is supposed to be singing opera.) This is reinforced by AT&T informing the SEC for the first time that it expects to pay DT the break up fee, which it values at $4bn ($3 bn cash, $1 bn spectrum) rather than the $6 bn announced last March (the spectrum rights appear to have been devalued $2 bn).

More than you could ever want to know about FCC procedure below . . . .

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Thoughts on an Old Fire Truck of North Caldwell: Time, Ambition, Rust


My friend and childhood friend Ande sent me a while ago a snapshot of an ancient fire truck rusting in a snow-covered field of weeds.

Photo by Janet Jessel

The hood has been removed and the left front wheel as well; the black blob of the engine sits above the chassis, naked. There is a windshield but no cab: a convertible fire engine! (Who would have designed or bought such a thing? Didn’t they have fires to fight during rainstorms (snowstorms!) back in whatever far-away times this machine was used?) The truck itself is still red, though faded. The town’s name and fire department emblem are still clearly readable on the door. All equipment has been stripped save the hose on a roller, which looks to be scarcely thicker than a garden hose. (Were fires tiny back in those days?) Behind the truck you can see a fence, and beyond the fence some trees and a power line. The photo was taken by Janet Jessel, the sister of Ande’s late first wife Judy, whom I never met.

The photo doesn’t show the back of the truck so you can’t see if there is a platform where firemen could have stood holding on to a rail en route to a fire like they do in old movies. (Note I said ‘firemen’, not gender-neutral ‘firefighters’. There were no women on the North Caldwell, NJ, Fire Department when this truck was in service, I can assure you of that.) Yet I know that that platform is there. For when I was a lad of fifteen I stood on that platform en route to a brush fire on Mountain Avenue. It was April 6th, 1968, two days after the Murder of Dr. Martin Luther King, Jr. That was my first fire as a volunteer firefighter. My most recent fire was two weeks ago. Continue reading

Why The Eviction of Occupy Wall St. From Zuccotti Park Raised An Interesting First Amendment Question.

A bit off topic, but I couldn’t resist. For most folks, the question of whether the recent eviction of Occupy Wall Street (OWS) protesters from Zuccotti Park constitutes a violation of the First Amendment has very little to do with law and much to do with principle. Those opposed to the eviction note that the demonstrators were peaceful, the Mayor displayed clear animus to the protestors and their message, and that the claims of health and safety are mere pretext. Those who support the City’s actions argue that the protesters had essentially co-opted the park to the exclusion of other public uses and that the protesters were in violation of the park rules (usually eliding over the fact that the rules were adopted after OWS began) and that it is privatekly owned space in any event.

After reading the Order upholding the right of NYC and the owners of Zuccotti Park to prohibit tents and, potentially, other sleeping things such as sleeping bags, I believe this raised an interesting 1st Amendment Question for those of us who follow 1st Amendment law. Those interested in why this is actually an interesting question, rather than resolution of the question, can see more below . . .

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My Insanely Long Field Guide To Cisco’s War On The TV White Spaces

Will Cisco’s war against the TV white spaces tank incentive auctions? No doubt this question comes as a surprise to the vast majority of people unaware Cisco was running a war against TV white spaces (TVWS). True, Cisco has mostly tried to stay behind the scenes. But as we get closer to the Super Committee deadline, which include negotiations for incentive auction rules that would let TVWS survive, Cisco has become increasingly willing to go public with its anti-TVWS lobbying efforts.

This blog post on the Cisco blog, followed by this letter from the High Tech Spectrum Coalition (HTSC), finally say publicly what Cisco and its allies have been saying privately since debate over spectrum legislation began last January: “Death to the TV White Spaces.” Instead, argues Cisco, open up a new block of 5 GHz spectrum to “replace” the white spaces. But with spectrum legislation in trouble – as evidenced by CTIA’s non-stop radio advertising here in D.C. and it’s recent ‘we love unlicensed, can’t we all get along?’ letter to the Super Committee – Cisco’s continued opposition to white spaces threatens to tank any hope of getting incentive auctions passed either in the Super Committee or elsewhere.

Incentive auctions, while popular as a revenue generator, were always a tough sell because of broadcaster passive/aggressive opposition. Adding D Block reallocation made it even more difficult. Cisco’s war on the TVWS threatens to be the final straw that makes this lift just too heavy. It splits a tech community that would otherwise wholly support incentive auctions, while simultaneously pissing off key members of Congress who helped get TVWS done in the first place.

So the time has come for Cisco, CTIA, and others who really want incentive auctions, to ask themselves whether it’s worth it to risk incentive auctions just so that Cisco can keep Microsoft, Google/Motorola, Dell, and others from bringing a competing product to market. The Hutchison/Rockefeller Bill, S.911, was a compromise that kept spectrum for TVWS, gave Cisco the 5 GHz block it wants, and made sure that a minimum threshold of 84 MHz would be auctioned before allocating any recovered spectrum to replace white spaces lost by auction or repacking. While not great from my perspective as a white spaces supporter (and I’d still like to see it tweaked some), it was at least a livable compromise. Cisco’s anti-TVWS campaign already backfired once, with the Republican discussion draft to require auction for all unlicensed spectrum. Will Cisco and CTIA fail to learn just how easy it would be for them to blow this for everyone? Or will they settle for the compromise that got a bipartisan bill out of the Commerce Committee?

Why Cisco has been gunning for the TVWS, the quiet little war of the last ten months, and how to get out of this quagmire before it’s too late, below. . . .

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Disclose This

When one of my children was learning to speak and to control the world around her, we told her that some behavior was a good idea. (I don’t remember what the behavior was.) She declared, “I do not like this good idea!”

As a software developers, I have ideas all the time, and I think some of them are good and would help people. I don’t want some corporation preventing others from using those ideas simply because they don’t like for others to do so. What would happen to software patents and business process patents if there was prior art in the blogosphere? We now live in a time where every utterance is available to others, and I’d like some good to come of that. So here are a bunch of ideas that I might like myself and everyone else to be able use in the future.

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When Flounders Unite, or I’m a “well-known author”

Got this note a few days ago from a friend  — the fan of my books I mentioned in a recent post who treated me to dinner in St. Louis:

My grandfather defined “well known” as meaning that everyone who knows you, knows you well…

I was talking to a colleague in my latest venture, the other day, while we were both in Boston for a meeting.  Somehow it came up that I’d worked at the Mill.  She said “Oh!  If you’ve worked there, there’s a book you should read!”.  I said: “I’ve read it”.  She said, “Oh, no, this one is hard to find”.  I said: “… and it was written by my pal John Sundman,  late of D.G., now a fireman”.  Good fun watching the jaw drop.

Apparently she knows you too: $reader2.  Best wishes from both of us.


In fact, I’ve also been to dinner with $reader2 –in Menlo Park, California, six years ago. Our dinner party included Dear Wife, $reader2’s husband, and KFJC disc jockey Ann Arbor, who has read portions of my novels on her legendary radio show “Dancing in the Fast Lane.”  (I got in touch with $reader1 after she sent me a check in the mail for 9 autographed copies of Acts of the Apostles to give to her friends — that’s how much she liked it.  (Buy ten books from me, and I’ll get in touch with you, too! Maybe we can go out for dinner sometime!) I don’t recall how Ann Arbor & $reader2 became friends.  I vaguely recall that my books were the catalyst, but I’m not sure about that.)

It is nice to be “well known” as a writer, to have passionate fans who become my friends. And it’s fun when people meet & randomly discover they share an interest in my books. I kinda wish the fan club had a few more members, but hey, as Ray Davies murmurs on “Muswell Hillbillies”, the best Kinks album ever, “it’s so lovely to be wanted. . .”

(In preparing this little post I wasted an hour trying to find a youtube clip of Rocky & Bullwinkle where Rocky finds a message in a bottle and Bullwinkle says “Fan mail from some flounder?” and Rocky says, “No, this is something really important!” before they cut to a commercial. Anyway, that’s it for me in this sketch. For something really important you’ll probably have to wait for the next post from Stearns or Harold.)

Can People Please Stop Pretending That DoJ is Going To Settle in AT&T/T-Mo?

It’s been a rough day for those who continue to hold the belief that DoJ and is really planning to settle with AT&T, or that AT&T’s mighty lobbying machine can bring the Antitrust Division to heel. First, White House Chief of Staff Bill Daley, appears to be losing influence. That’s important because cynics and true believers in the unbeatable awesomeness of AT&T’s lobbying have often pointed to Daley’s ties with the business community (and AT&T specifically) and cast him in the role of white knight for AT&T.  With Daley apparently in fade out mode, that seems rather unlikely.

But more importantly, at an unrelated hearing, Senator Herb Kohl (D-WI), Chair of the Judiciary Committee, asked Holder whether DoJ was “in it for the long haul.” Holder was about as aggressive as he could possibly be without challenging AT&T CEO Randal Stephenson to ‘meet him outside in the parking lot after the hearing and settle this one-on-one,’ and committing to “do to AT&T and Deutsche Telekom what Joe Frazier did to Muhammad Ali in Madison Square Garden – win a unanimous decision!” According to Reuters, Holder told Kohl that “people in the antitrust division are committed to seeing this through. There is a trial team in place and they are ready and eager to go to court.”

No doubt DT will continue to tell European analysts that Eric Holder is “such a flirt” and this is how we negotiate settlements here in the United States.  I also expect that a hardcore contingent will just never believe that AT&T can’t get what it wants in DC by spreading enough PAC money around and rounding up a few more endorsements. But anyone looking at this ought to realize that AT&T is wasting its money on all those commercials promoting the benefits of the merger to try to force a settlement.

AT&T can still prevail in court (although as I noted here and here, events of last week do not inspire much confidence on that front). But anyone thinking AT&T can avoid a trial really needs to wake up and smell the coffee. At this point, either AT&T and DT figure out how to unwind the deal, or bet the long odds that they can prevail. If I were an AT&T or DT stockholder I would definitely prefer Option 1. But as long as AT&T and DT management can spend money that’s not theirs, they will continue to hold out for a miracle.

Stay tuned . . .


The Sprint/C. Spire Skirmish: AT&T Loses Ground While DoJ Gets A Roadmap

Any tactician knows that battles can be won or lost by defining the battlefield. Skirmishes like the fight over whether Sprint and C. Spire (formerly Cell South) can go ahead with their private lawsuits against AT&T’s acquisition of T-Mobile help define the terrain for the bigger fights to come (order here). By ruling on what constitutes a recognizable injury under the antitrust rules and making preliminary determinations about the nature of the market, the Order sets the boundaries of what arguments DoJ can make and what it will need to do to prove its case. Where AT&T manages to have certain market definitions locked in and certain potential injuries excluded as not cognizable under antitrust in these early rounds, it gains an advantage. By contrast, where the court rejects AT&T’s efforts to limit the scope of the review by adopting different market definitions or recognizing certain injuries as addressed by the antitrust law, DoJ gains an advantage.

Both Sprint/C. Spire and AT&T claimed victory after Judge Huvelle issued her decision Wed. evening — Sprint/C. Spire for staying in on some claims when AT&T had said they would get thrown out, AT&T on the basis that “most” of Sprint and C. Spire’s claims got dismissed and what remains doesn’t matter. But everyone knows this is just a skirmish in the big battle between AT&T and DoJ. So, setting aside who won or lost this particular round, how does this position AT&T for the real fight?

More below . . . .

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Why DoJ’s Win Against H&R Block Is Bad News For AT&T/T-Mo.

The Department of Justice Antitrust Division (DoJ) just won its lawsuit to block H&R Block from acquiring its smaller, “maverick” competitor Tax Act. Even with the actual Order sealed for a month to let parties scrub out the trade secrets, a few important things stand out for why this is good news for DoJ in its lawsuit to block AT&T taking over T-Mo. In sports terms, this is like DoJ having a super strong exhibition season going into the regular season of play. While you still need to play the games to see who wins, anyone facing them ought to be worried.

My major takeaways from what we know so far below . . . .

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Obama finally Nominates Rosenworcel and Pai: Can They Get Confirmed Before The FCC Drops to 3?

The White House finally confirmed what everyone in the D.C. telecom world has expected for months. Obama officially nominated Jessica Rosenworcel to replace outgoing FCC Democratic Commissioner Michael Copps, whose term expires when Congress adjourns, and Ajit Pai to replace Republican Commissioner Meredith Baker, who stepped down last March. Both have considerable experience at the FCC, giving them understanding of how the agency functions in a very nuts and bolts kind of way. Both have broad experience with a range of communications issues, and no particular ties for/against any particular industry sector or company.

In short, both are “workhorse wonks,” with a proven track record of digging in on the complex issues that make this sector such a joy for those of us who like wonkiness and tough questions and such an eye-glazing, mind-numbing experience for those who don’t. While no one can say with any certainty what happens in this crazy and poisonous partisan environment, which every day comes more closely to resemble the delightful fable of the turtle and the scorpion crossing the river, their nominations should raise little controversy. Hopefully, the Senate will confirm both before the end of the year, when the FCC will otherwise drop down to 3 Commissioners.

For those unfamiliar with how this works, or with the candidates themselves, I provide a primer below.

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