Author: Harold

Wireless Mic Follow Up: Turns Out Public Safety Did Get There First

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One may logically ask, if I am right about the wireless microphones being such a big problem for public safety, why haven’t the public safety folks complained to the FCC about this?

Answer: turns out they have. But, the public safety folks being quiet and unassuming, failed to make themselves heard.

Allow me to change that. The National Public Safety Telecommunications Council, a federation of public safety associations, sent a letter to Chairman Martin asking that the FCC address the problem of wireless microphones back on June 30, 2008. i.e., about two weeks before I filed. While I wish I could claim that it was the NPSTC letter that inspired me, I had no idea it was out there until today. My conversations with the public safety guys were all informal and off the record. Still, as always when folks remind me I’m not an engineer (or an economist, or technologist, or any of the other topics on which I chose to share my humble layperson’s opinion), I am rather pleased to find a bunch of actual engineers that agree with me.

Mind you, the NPSTC letter asks the FCC to go a heck of a lot further than I have. NPSTC wants wireless microphones kicked out of the entire 700 MHz band. I, OTOH, think lots of folks can productively use the broadcast white spaces. Still, I do feel compelled to point out that wireless microphones do not have nearly the level of intelligence/sophistication being discussed for interference avoidance for the white spaces devices at issue in 04-186. Perhaps we should require wireless microphones to rely on sensing as well, or require that they consult an online database for possible new users in the band, or require them to acknowledge some sort of “permissive beacon.” Perhaps public safety entities like NPSTC should administer the database or beacon, and we should require wireless microphone users to pay for these services.

I mean, after all, we wouldn’t want to let these devices run around loose, would we? Think of the terrible interference that might cause. Unless these devices can meet the same rigorous standards that Shure and others seek to impose on unlicensed devices in 04-186, I don’t see how we can ask NPSTC to abide by circumstances that they feel place our public safety at risk.

Stay tuned . . . .

We File Wireless Microphone Complaint: Shure Says Breaking Law Should Be OK If You Sound Good.

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As regular readers will know, among my many wireless fixations are the use of the broadcast white spaces and the 700 MHz auction. So what happens when I get to combine the two together?

Answer: A 50 page complaint and Petition for Rulemaking, another 175 pages of evidence that Shure and other manufacturers have been marketing wireless microphones in violation of FCC rules, then using the victims of this deceptive marketing scam as “human shields” in the white spaces debate, and a possible road map toward solving the potential for massive interference with new public safety and wireless services operating on the returned UHF bands. As a side benefit, it also provides a route to authorization for the hundreds of thousands (if not millions) of illegal wireless microphones, finds a use for that leftover 5 MHZ band in the AWS-2/AWS-3 proceeding (waste not want not), and potentially changes the debate in the white spaces fight by getting the goddamn fact that the overwhelming majority of wireless microphones are (at the moment) used illegally out in the open so people can have a rational discussion about interference protection.

Oh yeah, and it will require the wireless microphone manufacturers to clean up the mess by exchanging the old, unauthorized equipment for new equipment that doesn’t work on Channels 52-69. I love a plan that only punishes the guilty rather than letting the wireless microphone guys reap yet another windfall by requiring the unauthorized users to pay for their own equipment replacement.

And what was Shure’s response to the complaint? According to the Associated Press, Shure did not deny breaking the law. Instead, they said: “today’s uses of wireless microphones provide a valuable and irreplaceable public good, regardless of the licensing scheme.”

Or, in other words, “yeah, we broke the law — but it doesn’t matter because we will use Broadway and churches as human shields if you try to go after us” (insert international gesture of respect performed with raised middle finger at FCC).

You can see the press release here, and get copies of our complaint/Petition here. (Links to the Exhibits are on the press page.) You can see a bit more analysis from yr hmbl obdn’t below….

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FISA Reflections: FISA and The FCC

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Well, the foul FISA Amendments Act is signed. I shall have more refections as time permits. But I did have one thought here. FISA and the FCC.

The Title II of the FISA Amendment Act of 2008, the “Protection for Electronic Communications Service Providers,” provides for protection from any “covered civil law suit.” As John Dean first observed, the bill does not refer to criminal immunity. Personally, however, I think that is a bit of a red herring, although I am curious as to whether the pardon power really runs to corporations and other artificial person that exist solely as a function of law. But lets assume it does. So let us assume that on his last day, Bush pardons anyone and everyone involved in the whole sorry affair. Where does that leave us?

The Federal Communications Commission.

The FCC is not a “court” of the United State as defined by the act. A complaint brought to the FCC under the Customer Premise Network Information (CPNI) rules, or even the broader provisions of Section 202 “just and reasonable practices,” does not fall within the purview of a “covered civil action.” In the event that a pardon is considered to cover possible administrative sanction, I would observe that a Petition for Declaratory Ruling that the conduct disclosed violated the CPNI rules is not a criminal action or civil liability, but would still entitle the Commission under its broad powers pursuant to Section 4(i) and Section 403 to investigate. Indeed, under Section 403, the Commission is free to conduct an investigation into the matter on its own motion — if it so desires. The Commission is not limited by the Article III “cases or controversies” requirement. It can investigate anything pertinent to its regulation of all communications by wire or radio, particularly when related to administration of any provision of the Act.

The upside is that, short of a statute specifically prohibiting the FCC from investigating anything related to the domestic spying program, it is damn hard to take this broad investigative authority away. As noted above, even the absence of any criminal or civil liability cannot divest the FCC of its authority to investigate communications carriers — particularly those regulated as common carriers under Title II. Given that the Chair of the FCC cannot be removed by the President, and I would need to check about the applicability of an executive order to the FCC, nothing short of a direct Act of Congress again could deprive the FCC of its ability to investigate. (I imagine we will need to watch the appropriations bills very carefully to see if some clever person sneaks it in under the radar.)

The downside, of course, is that this lies entirely within the discretion of the agency. Even a filed complaint or Petition for Declaratory ruling cannot compel the agency to action.

So we shall just have to see what happens after the election. If we have an FCC interested in letting the American people know how their government spied on them, what actual benefit accrued, if any, and what the FCC might do under existing law to keep that from happening again in the future (all, of course, consistent with national security, blah, blah), we can at least find out what went on and shame these companies into being more careful the next time around. OTOH, if we have an FCC that believes that “national security” means giving the telcos a free ride if the Administration asks nicely, then we can’t find out jack.

Stay tuned . . . .

I Suggest Giving Comcast What It Asks For . . . . Heh, Heh, Heh . . . .

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As the FCC’s examination into our complaint against Comcast winds down, with what looks like a win for us (although with an opponent like Comcast, I am not going to celebrate a win until after the order is voted), Comcast has increased its efforts to woo McDowell and Tate with a show that “the market” will magically cure all ills by cutting a non-aggression pact with Vonage and a new ex parte filing listing all the wonderful things it has done since the Commission put our complaint out on public notice, which is an obvious sign that no regulatory action is necessary since it is merely coincidence that Comcast (and other broadband providers) have been scrambling with ever more serious urgency as the resolution of the complaint moves closer. Ah Comcast “Change we can believe in until all you stupid regulators go away and we can get back to crushing folks like insects beneath our fiber-coax heel.”

More of interest to us legal (and less credulous) types, Comcast filed a lengthy rebuttal to Marvin Amori’s magnum opus on Commission jursidiction. Marvin’s piece was, of course, a response to the Comcast filing after the Boston Hearing, that asserted the FCC had no authority to sanction Comcast or regulate Comcast’s broadband in the first place. Mind you, Comcast told the a California district court otherwise, and got a stay of the pending class action for blocking bittorrent as a consequence. But the first lesson of law school is that consistency is only a virtue if it serves your client. In any event, this most recent filing (which has not yet shown up online for me to link to) is therefore either the rebuttal to FP’s reply or merely the Nth go round in a “permit but disclose” proceeding.

This is reflected by Comcast’s argument, which largely rehashes previous arguments about the limits of Commission authority and whether Comcast had proper notice it could be subject to a civil complaint and civil sanction. Fair enough. Time now for the FCC to decide and then on to the D.C. Circuit. That’s what process is for, to get the arguments out so we can get a judgment and get on with our lives.

But Comcast does raise one new argument, and an intriguing one at that. And ya know, I think the Commission ought to give it to them. Heh, heh, heh . . .

Why am I chuckling? See below . . . .

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An Interesting Tea Leaf on AWS-3/M2Z

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Well, I keep saying I will do the big posting on AWS-3/M2Z, and keep not getting to it. So I will just drop a short note for the fellow FCC policy junkies who follow this stuff closely. You can find background on the AWS-3/M2Z business here, here, and here.

The FCC extended the filing deadline on the proposal released June 20 to reapportion spectrum between the AWS-2 band and the AWS-3 band (as well as mandatory content filtering). Comments were originally due on a tight deadline (today). This extends things out to a full 30 days for comments and 14 days for reply, so the new dates are July 25 and August 11. That’s less than what the wireless carriers wanted, and it explicitly rejects the request for the FCC to do its own testing. In fact, the whole tenor of the Order provides a rich field for us FCC-ologists to start gazing in tea dregs and rummaging through pigeon entrails.

More below . . .

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Broadcast Flag Through The Back Door — Yet Another Episode of “Outsourcing Big Brother.”

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The Motion Picture Association of America has asked the FCC to give it a waiver of something called the “selectable output control” rules for cable boxes. As usual, this apparently minor request for a waiver of an obscure FCC regulation of unknown origin, governing a highly-technical and mind numbingly boring set of rules about cable set-top boxes, hides a bold power grab designed to rip off every owner of a Tivo, VCR, or other perfectly legal recording device available to consumers to engage in the legal practice of recording television programs to watch them later (“time shifting”).

For details on this latest effort to circumvent limits on government by outsourcing the process to an industry cartel, aka “outsourcing Big Brother,” see below . . . .

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A Sad Day for Brave Little Toasters Everywhere.

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As reported by Cory Doctorow on on BoingBoing, author and poet Tom Disch committed suicide on July 4.

Disch achieved fame and notoriety for his fiction writing, particularly science fiction, and as a poet. You can find his Wikkipedia entry here. I gather from the various blog obits from friends and acquaintances that Disch was one of those enormously brilliant people who could be a real pain in the butt to deal with in person. I don’t know, I never met him.

For me, Disch’s name is synonymous with the character he created for his children’s book (and subsequent Disney movie adaptation), the The Brave Little Toaster. If I may make a secret confession, I totally love that story and that movie. Really. It is ridiculous and sappy (and I never particularly liked the sequels), but there was just something about this scrappy little toaster that defied all laws of logic and nature and found his master again against ridiculous odds. Maybe that’s why I went into public advocacy.

So I find it sad that the man who created the scrappy Little Toaster took his own life. A sad day for Brave Little Toasters everywhere.

Sic transit gloria mundae

Stay tuned . . . .

Censorship — Ur Doin It Wrong. And That's Why A Mandatory Filiter For AWS-3 is a BAD IDEA!

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I am, of course, the last person in the world to tell other people what they should or shouldn’t advocate for and how they should or shouldn’t filter themselves. Thus, I have no quarrel with the decision of the American Family Association and how they choose to display the news (provided they comply with all relevant laws pertaining to copyright, defamation, etc.) True, I most vehemently disagree with their choice of “pro-family” agenda. I personally think families will benefit more from resolving the pay gap, better laws on paternity leave, and family friendly work policies than focusing on the behavior of consenting adults. But hey, that’s what the First Amendment is all about, so we can have these debates.

So the fact that AFA apparently thinks “gay” is too nice a word and has its news reader automatically replace it with the word “homosexual” does not raise any issues for me — I’m even willing to defend this as a fair use alteration of the text for political speech. But as the good folks at People for the American Way noted (and captured on their own website — ain’t the First Amendment grand?) it can have some humorous and unintended consequences. In this case, the accidental “furtherance of the homosexual agenda” by substituting the word “homosexual” for the proper last name “Gay,” which is a problem now that “Tyson Homosexual” is breaking speed records. Man, I always knew Homosexual could run the distance! What champion.

This would merely be an amusing little anecdote were it not for the fact that the FCC has proposed mandatory network-based indecency filtering as part of the AWS-3/M2Z proposal now out for public comment. For those just tuning in, this is the proposal to create a the equivalent of a free wireless DSL line supported by advertising and a premium service the FCC has out on public notice (comments due July 9).

I promise to try to get a much longer post out on the AWS-3 proposal, but let me focus for a minute on the mandatory filtering (which is not mentioned in the text of the FCC Notice, you have to actually read through the rules). As we can see from this relatively harmless example, filtering is a blunt instrument that often does more harm than good. Even with the increase in computational power from Moore’s Law, blah, blah, no automated filtering system can even come close to making the sort of contextualized judgments of what constitutes indecency that the Constitution demands. Heck, even human beings can’t agree on what makes something indecent and what makes it art. Whenever social networking sites or search engines or whatever get pressured into breaking out the broom in the name of the children, it invariably wipes out cancer support groups, rape survivor groups, and a bunch of unrelated stuff like chess.

And the FCC wants to require that the free network, accessible to every American, will also judge whether a future headline such as “Gay Doping?” is a discussion of a possible Olympic sports scandal or an advertisement for a same-sex rave?

I can laugh about the American Family Association and their personal filter follies that harm no one but those who chose to use their news service. But I shudder to think this may be the fate of our national broadband safety net.

Stay tuned . . . .

Sixth Circuit Upholds FCC on LFA Limits: A Bad Decision and A Sad Day for Localism, With Possible Silver Lining for Ancillary Authority and Leased Access.

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The Sixth Circuit has denied the Petitions for Review filed by local franchise authorities (LFAs) and PEG programmers challenging the FCC’s December 2006 Order limiting the ability of LFA’s to negotiate with telco video overbuilders. (You can read a copy of the decision here.)

I am rather disappointed with the decision, as readers might imagine. Not only do I think limiting the authority of LFA’s to protect their residents is a phenomenally bad idea, I think the court takes a very expansive view of FCC authority over LFAs given the legislative history and the statute in question.

On the other hand, the decision potentially provides a substantial boost both the FCC’s ancillary authority and to its leased access reform order, currently pending before the Sixth Circuit. While I find this rather cold and uncertain comfort at the moment, it’s the best I can do in the face of what has become an utter rout for LFAs and PEG programmers. God willing, a future FCC will conduct the inquiry into strengthening PEG programming Commissioners Adelstein and Copps have repeatedly urged.

Some further analysis of the decision and what it might mean below…

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Iowa Broadcasters to FCC: “We Do Localism! All It took Was A 500 Year Flood.”

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One has to admire the utterly ruthless and meticulous way in which broadcasters will move swiftly to exploit absolutely any possible set of circumstances for their regulatory advantage. Case in point, this letter from Sue Toma, Executive Director of the Iowa Broadcaster’s Association to FCC Chairman Kevin Martin, touting their involvement in their communities during the recent terrible flooding.

Mind you, I am glad that Iowa broadcasters can get it together to do their job during a 500 year flood. And it is the job of trade associations to tout the good its members do — even when it is the sort of thing we expect them to do. And certainly Iowa broadcasters should be praised for stepping up to the plate when needed and recognized for playing their part — along with the other community businesses and volunteers from around the country who, unlike the broadccasters, are not under a legal obligation to provide service to the local community. But of course, for the broadcasters, that is not enough. As usual, the broadcasters behave rather like spoiled 6 year old children who expect bribes to do their homework or their chores. Hence inclusion of this little zinger at the end:

I can’t help but note that the Iowa floods come at a time when well meaning but misguided activists are questioning broadcasters’ commitment to localism. My response: Spend time in Iowa, and see first-hand how local and radio and TV stations are serving our communities during the worst flooding in a century. Iowa broadcasters have once again proven their exemplary commitment to the communities that we serve, without the need for more mandates, paperwork and unnecessary regulation.

In other words, that stations actually do their jobs in a once in a century crisis gets them off the hook for the remaining 99 years, 11 months. To which I can only say, giving proper credit and appreciate to stations doing the work they are supposed to do, “get real.” The real test of localism isn’t just how you do in a crisis and that somehow gives you a free pass on the rest of the license period. The real test of localism is how you serve your local community on a daily basis. That broadcasters refuse even to list what programming they show and what they think their viewers get out of the programming choices — whether news, or entertainment, or exposure to local culture and matters of local interest — should raise serious questions about whether broadcasters take their role as stewards of a public license held in trust for the local community seriously.

I recognize that leveraging responses to natural disasters for regulatory goodies is a hallowed tradition among broadcasters, so I’m not offended at the Iowa Broadcaster’s Association rushing to send this letter as soon as their laptops dried out. But because broadcasters get a lot of mileage out of their so called commitment to localism — such as cable must carry, the right to play music without paying performance royalties, and a rule against satellite radio providing local content that might compete — someone needs to call them on this. You can’t get the benefits of being a licensee with a duty to serve your local community without shouldering the responsibilities as well. So just as my son doesn’t get out of doing his chores just because he did his homework — even if he got an A — broadcasters don’t get excused from serving their community every regular day just because they came through during a flood or some other epic crisis. Kudos for doing a good job on this one, but it’s still your job and you’re supposed to do it well.

And, given that nearly 1 million people took the time to tell the FCC during its localism proceeding that they thought local broadcasters were doing a lousy job serving their local community (I make no claims as to Iowa, that’s national), it doesn’t seem out of line for the FCC to require you to actually tell the FCC how your programming serves the local community as required by your license and to make that documentation publicly available, a requirement broadcasters have gone to court to resist.

Finally, I can’t help but note that low power FM stations (that full power broadcasters fight tooth and nail to keep off the air) have likewise done amazing coverage of the flood and heroic service to their local communities — while still managing to produce local content and serve their communities on a regular basis. If they can pull their weight while still more than complying withe the “mandates, paperwork, and unnecessary regulations” that ensure they serve their local communities, I think the rest of the broadcast community in Iowa can do so as well. And ought to.

Stay tuned . . . .