Author: Harold

FCC “WiMAX Auction” Already Over — Not a Surprise, But Still Impressive.

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Some of you may recall that last month fellower Wetmachiner Greg Rose and I published our first industry report on the FCC’s Auction 86. We dubbed this the “WIMAX Auction” because the band at issue, the 2.5 GHz band, is the focus of major WIMAX activity in the U.S. and the report described the current state of the industry (including coverage maps for Clearwire and Sprint and the most extensive private database yet of who holds what in the band), likely outcomes in the auction, and what the behavior of bidders in the auction would tell us.

One prediction we made, that the auction itself would attract very little interest because it was an “ash and trash” auction of the leaving in the band, held up pretty well. The auction opened on October 27, and closed Friday, November 6. In other words, the entire auction lasted a week (4 bidding days) — which in FCC terms is greased lightning (the 700 MHz auction last year, for example, went on for 38 bidding days covering over 2 months). Total haul was $20 million, which will hopefully serve as a reminder to folks that spectrum auctions are not all multi-billion dollar gold mines.

As promised, we will release a post auction analysis available with the spectrum maps and databases for $799 within the next few months, once we (meaning Greg) have a chance to crunch the numbers and the round by round results. (Those who pre-ordered at the reduced rate when they bought the earlier report do not need to re-order). If you order now (the report is available through Muniwreless.com and through BroadbandCensus.com), you will not only pre-order the post-auction updates, but will get a copy of the original report with its industry analysis and coverage maps.

Stay tuned . . . .

Losing Maine: An “Elijah Moment” For The Same Sex Marriage Movement.

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Things looked good early in the evening November 3 for those who opposed Maine’s Question 1 — the referendum to overturn the state legislature’s redefinition of marriage as between two consenting adults rather than between a man and a woman. As the first state to pass such a law through its legislature without a court order, Maine represented a potential turning point for the movement. If Question 1 were defeated, it would provide further momentum and show that a legislative strategy could succeed. By contrast, a majority of voters in Maine voting to pass Question 1 would be a devastating blow not merely to same sex couples in Maine, but to the movement as a whole.

The “No On One” folks had run an excellent campaign. Unlike the campaign against California’s Proposition 8 last year, which was slow to recognize the substantial resistance to same sex marriage opponents would tap, the No On One folks ran a substantial ground game, ad campaign, and mobilization strategy. Voter turnout was heavy, which was thought to favor No On One, and early returns — from urban areas — looked very good.

Then things went sour. Enthusiasm on both sides was very high. Rural districts went overwhelming Yes on One. By the end of the night, it appeared that a majority of voters in Maine had rejected the state legislature’s effort to eliminate discrimination in marriage. You can read Adam Bink’s liveblogging (which I find heartbreaking in its straightforward reporting) here. Nate Silver (who had predicted defeat for Question 1) has some analysis here, including speculation on the possibility that there may be a “Bradley Effect”-type phenomena wrt same sex marriage. Others blame Obama for declining to invest his own political capital. But whatever the reason, the loss on Question 1 in Maine creates the possibility of what I call an “Elijah moment” — based on Kings I 19:1-14 — for the many people who have invested so much of themselves in the movement to provide the fundamental right of marriage to all.

More below . . .

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Will Comcast/NBC Need FCC Approval? And How Would That Play Out?

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The industry news is abuzz with the upcoming Comcast/NC Universal Deal. According to recent reports, Comcast would buy 51% of NBC Universal (assuming Vivendi, which owns 20% at the moment, agreed with the terms). But beyond this general framework, it’s unclear whether all the assets held by NBC Universal would be included in the deal. Whether or not the FCC has jurisdiction hinges on this question.

The FCC does not have general jurisdiction over deals pertaining to content. NBC Universal owns lots of radio and television stations. Transfer of the licenses to the new Comcast-controlled entity would require FCC approval. But if the deal does not include the licenses, the FCC would probably lack a jurisdictional hook. Review of the deal would lie strictly in antitrust — at either the DoJ or Federal Trade Commission (FTC). From an antitrust perspective, the deal raises some concerns given the concentration of content and Comcast’s position vis-a-vis other existing subscription television providers (e.g., FIOS, DIRECTV) and potential new competitors (e.g., Netflix and other “over the top” video providers)). It may also concern broadcasters, both NBC affiliates worried about the change in management and other broadcasters worried how this would impact Comcast’s retrans negotiations. Much of this will also depend on whether the deal includes the movie production studios, prior existing content, and a host of other details that impact the universe of content distribution these days.

Assuming the TV and/or radio stations are included, it’s not entirely clear what happens. The D.C. Circuit eliminated the FCC’s existing ban on cable/television cross ownership (which applied only to broadcast licenses in a cable system’s franchise area) in 2002 on the basis that the D.C. Circuit didn’t like it (Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002). That decision does not directly impact the FCC’s general obligation under Section 310(d) to ensure that any transfer of a license serves the public interest. Comcast and NBC will certain push the Fox Television decision for all its worth, arguing that the DC Circuit decision to vacate the rule means that there are no circumstances under which the FCC could prevent a broadcast/cable cross-ownership rules. Opponents will argue that while the D.C. Circuit vacated a per se rule that any cable/broadcast combination was contrary to the public interest, that has zero impact on the Commission’s responsibility to resolve the question of whether transfer of these licenses to this cable company serves the public interest. I expect much confusion and argument on this point. Assuming the FCC has jurisdiction in the first place.

Stay tuned . . . .

As Maine Goes . . . .

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Damn. The Question 1 fight in Maine is turning out to be a real squeaker. So I’m posting a link here to the Courage Campaign Equality Program.
http://www.couragecampaign.org/page/content/321CountdownForEquality/

There are ways to help campaign to save same sex marriage in Maine and show that there are places where a majority of the people understand the need to defend the rights of others as well as their own rights. To borrow from John Donne:

All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated…As therefore the bell that rings to a sermon, calls not upon the preacher only, but upon the congregation to come: so this bell calls us all: but how much more me, who am brought so near the door by this sickness….No man is an island, entire of itself…any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.

So too the rights of all. I am straight and happily married. No one in my immediate family is a same sex relationship or lives in Maine. I have no personal stake in the outcome.

Except that I am not truly free unless all are free. Any person’s oppression diminishes me, because I am involved in humankind. And while I have no delusion that I shall see the end of injustice, cruelty or oppression until the End of Days that does not absolve me of my duty to do all I can, when I can, how I can.

Stay tuned . . . .

McDowell Forgets He Already Voted That FCC Has Authority To Enforce NN Rules.

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I recently complained that no one else ever seems to follow the record on the network neutrality stuff. But Commissioner McDowell took the prize for failure to remember what he had previously voted for in this very proceeding back in March 2007 when the Commission voted out the Notice of Inquiry that started this whole thing. Mind you, McDowell should not feel too bad, given that nobody else at the FCC seems to remember this stuff either. Not when they wrote the Comcast/BitTorrent Order, nor even when they wrote the Notice of Proposed Rulemaking last week. Despite the fact that both items are actually in the same blasted docket. Because good God almighty, how hard is it for the staff at the FCC to actually know the friggin’ docket? It’s just the basis for this entire proceeding. And the entire collective agency cannot remember that it voted as settled law by 5-0 that it has authority to regulate and enforce network neutrality rules. And that McDowell not only voted in favor, he explicitly concurred!

I swear, it’s enough to make a poor obsessed policy wonk tear out what’s left of his hair and beard.

More below . . . .

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Canada Adopts Comcast/Bitorrent Standard For Network Management

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On the eve of the FCC’s upcoming Network Neutrality rulemaking, Canada has now settled its definition of “reasonable network management” and set rules for traffic throttling. Amazingly, the rules the Canadian Radio-television and Telecommunications Commission (CRTC) settled on for “reasonable network management” look a lot like the standard our own FCC settled on in the Comcast/BitTorrent Order, but even stronger on the notice and transparency side. Hopefully, the FCC is paying attention here as it considers its own rulemaking on the definition of “reasonable network management.”

You can read the CRTC press release here and the detailed order here. The CRTC also says that it will sue this new framework “to review practices that raise concerns or generate complaints.” i.e., it will treat this as the equivalent of the Internet Policy Statement and entertain complaints like the Comcast/BitTorrent complaint.

While this means I will no longer have my realtime experiment to see if unrestricted traffic shaping screws up broadband, it does make the FCC look less like whacked out nutbars who don’t understand engineering and threaten the entire internet and more like foresighted regulators who are ready now to move on to a formal rulemaking rather than merely rely on a framework.

Moe below . . . .

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Why Don’t Broadcasters Become “Spectrum Innovators?” Because They Like Being Broadcasters.

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Can’t help but take a brief break from the Net Neutrality craziness to be mildly amused at Adam Thierer over at Tech Liberation Front. We have an increasing number of reports that Blair Levin wants to bribe broadcasters to get off their spectrum as part of the national broadband plan. Adam is very excited by this and, of course, brings up the usual Libertarian argument that because property solves all problems, we should just make the broadcast licenses property of the broadcasters and let the endless innovation begin.

The problem with argument is that broadcasters could already do this. Under 47 USC 336(b), broadcasters can use their digital spectrum to provide “ancillary and supplementary services.” In a series of orders, the FCC has said that as long as full-power broadcasters provide one free over the air digital channel, they can do whatever they want with the remaining spectrum — including lease it out in the secondary markets to someone else. Under the statute, broadcasters need to pay a fee for any such ancillary services that would be the functional equivalent of what the broadcasters would have paid for the spectrum at auction (47 USC 336(e)), which the FCC has fixed at 5% of any annual revenue from the ancillary services.

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Congrats to Adam Thierer! PFF to Get Needed New Blood and New Ideas (But Don't Worry, We'll Still Disagree On Most Things).

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Adam Thierer, long-time friend and opposite number in the Libertarian Camp, has just been named President of the Progress and Freedom Foundation, replacing Ken Ferree. Frankly, I hope Adam will bring a dose of new thinking tp PFF, since Ken Ferree has pretty much spent the last several years explaining at great length why everything the Powell FCC did was wonderful, rational, and the epitome of all that was right in public policy whereas Kevin Martin was a revisionist wanker and traitor to the Neocon Revolution. Much as I’m sure this was amusing for the participants, it did get old after a bit.

I expect Adam and I (and PFF) will continue to disagree on most things regulatory. But I have found in the past that Adam is an intelligent and engaging person willing to actually listen to what other people have to say before responding — and generally sticking to substance rather than the ad hominem or mindless talking points favored by too many here in DC. In other words, he is the sort of Free Market enthusiast/anti-regulatory advocate who makes me work for a living and is a necessary counterpoint to make any system work.

I wish him luck, but (if you will excuse me) not too much success.

Stay tuned . . . .