Life In The Sausage Factory

The mechanics of how Washington works

Congratulations To Senator Markey! Good News For Telecom on Unlicensed, Competition, and Consumer Protection.

,

Last night, Representative Ed Markey (D-MA) became Senator Ed Markey. That’s good news for Massachusetts, but also good news for those hoping to see a telecom agenda move through the Senate (assuming Markey is assigned to the Commerce Committee).

For those unfamiliar with Ed Markey’s track record on telecom and media, you should thank him every time you watch television with closed captions. That includes online. Markey has been a champion for the physically disabled and consumers generally, and the closed captioning rules in both the 1992 Cable Act and in the 21st Century Communications and Video Accessibility Act of 2010 are the direct results of his efforts.

Markey’s return to the Commerce Committee in the Senate would be particularly welcome in light of the serious “brain drain” the Committee has suffered in terms of its Telecom leadership on both the Democratic and Republican side. Since last Congress the Committee has lost Senator John Kerry (D-MA), Senator Olympia Snowe (R-ME), Senator Kay Bailey Hutchison (R-TX) and Senator Jim DeMint (R-SC), all of whom had significant telecom expertise.

Markey — assuming he takes Kerry’s place on the Committee (as a member not as Chair of the Subcommittee) — will bring passion for critical telecom issues facing the Committee. In addition to being a champion for consumer protection generally, we can hope that Markey will remind his colleagues that there is more to the Incentive Auctions than maximizing revenue. In particular, on the critical issues of preserving spectrum for TV white spaces and using the auction to put spectrum in the hands of competitors, Markey has been a powerful voice in the House.

Equally important, Markey’s experience and ability to reach across the aisle will prove profoundly important as Congress overseas the transition of the telephone system.  As one of the chief architects of the 1996 Telecom Act and one of the few members of the Committee whose tenure goes back to the 1992 Cable Act, Markey brings a perspective that would otherwise be absent after Senator Rockefeller retires. Markey actually remembers why we had these rules in the first place, and the important fundamental principles they are intended to protect and encourage.

While Congress has not yet become active on the PSTN transition, we can expect they inevitably will. When that happens, Markey’s experience in everything from Universal Service Fund to Accessibility issues will be critical to keeping the Committee on the right track.

Stay tuned . . .

For the First Time In 100 Years, Copper Lines Come Down And Don’t Go Back Up. Verizon Files It’s 214(a) To Stop Copper Service In NY & NJ.

, ,

Verizon has filed its request to the FCC to discontinue copper service in certain communities on Fire Island, NY and the Barrier Island of NJ, as required by Section 214(a) and 47 C.F.R. 63.71. You can find a copy here. At some point, the FCC will put this out on Public Notice and then folks can file objections if they want.

In some ways, this is a little thing impacting only a few communities. In other ways, it is a very big deal. If there is a single moment to point to and say “This is it! This is The Day We Started To Shut Down The Phone Network,” that day is today. With this little routine barely noticed filing for an administrative procedure that impacts a handful of communities.

Why? Because for the first time, the local phone company has said “once the old copper lines come down, they are not coming back — ever. We are out of the traditional phone service on Fire Island and Barrier Island and no one else is going to provide it either.”

Yes, there are other services that will sell you voice service. They will tell you its a phone. Each of these does many things the old phone system does, and most of these services do amazing things the old phone system could never do.

But like any transition — especially one that rests on a social contract people have relied upon for 100 years — we must expect a lot of disruption as well as anticipate the potential benefits. Verizon should not need to maintain an increasingly expensive and antiquated copper network until the end of time. Nor should they be required to rebuild copper they expect to shut down again in a few years time.

At the same time, we don’t just throw people under the bus — or send them suddenly scrambling for expensive alternatives. I’ve objected before to the way Verizon has moved forward with Voice Link because Sandy victims should not be guinea pigs for Voice Link’s first ever mass deployment.  At Public Knowledge, we’ve also had some concerns about what Verizon says Voice Link doesn’t do that the old copper service did do. Some of these can be addressed relatively easily, and Verizon has stated publicly it is working on improvements in things like battery life and using commercially available double AA batteries. Services that are considered vitally important by some communities, such as the ability to use international calling cards and receive collect calls, would require more work.

The question isn’t whether we transition the phone system or don’t. The question is how we transition. This is why my employer Public Knowledge has supported using a Framework of Five Fundamental Principles to guide the transition: Service to All Americans, Consumer Protection, Reliability, Public Safety, and Competition. This is why we have supported AT&T’s call to engage in dialog on the transition, and endorsed the idea of carefully conducted technical trials that protect consumers and genuinely inform the process.

As the FCC and state regulators evaluate Verizon’s application to end copper wire service entirely and replace it with Voice Link, it should evaluate Voice Link under the Five Fundamentals Framework. Does Voice Link provide adequate service to all members of the community, including the poor and vulnerable who have depended most heavily on the “copper safety net” of the old phone system? Does it adequately protect consumers? Will it function reliably in an emergency? And what are the implications for competition?

Above all else, the transition of the phone system and the end of the old copper network must not be a step backward. Handled properly, the transition can benefit everyone. There is nothing magical about copper.  All the fundamental principles we have relied on for 100 years — service to all Americans, consumer protection, reliability, public safety, and competition — were the result of deliberate policy choices. We can maintain these principles as we move forward to new wireless and IP-based networks, or we can chose to discard them.

Verizon and AT&T, understandably, have stressed everything we have to gain from the networks of the 21st Century. It falls to the regulators — and the public that holds them accountable — to make sure these gains do not come by sacrificing the poorest and most vulnerable.

 

Stay tuned . . . .

Would Tom Wheeler Really Have Approved The AT&T/T-Mo Merger? Why I don’t Think So.

, , , , ,

After weeks of speculation, it now appears certain that President Obama will nominate Thomas Wheeler to replace Julius Genachowski as Chair of the Federal Communications Commission (FCC), with Commissioner Mignon Clyburn to serve as acting until Wheeler’s nomination gets confirmed by the Senate. In recent weeks, Wheeler’s background as a lobbyist many years ago for first the cable industry and then the wireless industry have raised concerns that Wheeler remains more sympathetic to business interests than the public interest. As anyone who has read Public Knowledge’s official statement in response to the nomination can see, while we understand those concerns, we agree with many other public interest colleagues who think that Wheeler has an independent perspective and an open mind. Certainly we will have disagreements with the new Chairman (assuming Wheeler is confirmed), but we expect that Wheeler will actively work to promote competition and protect consumers.

 

Yeah, I know, that sounds like either wishful thinking or Washington insider talk. So allow me to explain my line of reasoning (since, unlike a number of other Wheeler supporters, I actually don’t know Wheeler at all). In particular, I want to tackle the current “Tom Wheeler would have approved the AT&T/T-Mobile merger in 2011.” It’s easy to say “oh, all that lobbying for the cable and wireless industry was long ago when they were scrappy upstarts. Why, that was so long ago that the cable industry were battling the broadcasters and the wireless industry were battling the telcos (as opposed to these days when the cable industry battles the telcos and the wireless industry battles the broadcasters)!” But if Wheeler was actually a supporter of AT&T/T-Mo, then it would seem to prove he still has sympathies to his old industry incumbent comrades.

 

I examine the People v. Tom Wheeler in the matter of AT&T/T-Mo below . . .

Continue reading

The Best 10 Ironies About The “Obama Phone”

, ,

There is so much about the “Obama Phone” nonsense that tickles my funny bone in odd places. It’s not just that everything conservatives say about it is factually wrong. It also proves that the cherished progressive belief that every policy ever adopted under Reagan and under W were universally unmitigated disasters for the poor and people of color is also wrong. (No, I’m not saying one good policy makes up for a load of bad policies – but honesty demands acknowledging that the Universal Service Fund (USF), of which Lifeline/Linkup is part, started under Reagan and got expanded to wireless by former Federal Communications Commission (FCC) Chair Kevin Martin under Bush).

 

As if this were not ironic enough, the “Obama phone” was approved by the FCC in part to address the massive sudden need for subsidized mobile phones for Katrina victims. In 2005-06, Tracfone distributed 30,000 phones to Katrina victims under the expanded Lifeline program, and raised awareness of the new program through the devastated Gulf Coast region, i.e, the same red state regions now bellyaching about the program. For Progressives, consider that the “Obama phone” was invented in part as a response to Katrina by the President who “didn’t care about black people.”

 

Even better, it’s an example of how Republicans once upon a time took action to create programs to address the needs of poor people, even when it meant raising rates on the wealthy – a thing neither conservatives or progressives appear willing to acknowledge ever happened. Then, of course, there is the irony that the people most upset about the “Obama Phone,” rural conservatives, are subsidized out of the same program at a much higher rate. For us law geeks, it’s fun to remember that USF started with the FCC exercising its “ancillary authority,” that the D.C. Circuit affirmed this massive expansion of FCC authority, and the Republican Congress would later approve, endorse, and expand this as part of the 1996 Act.

 

Another irony on the Republican side is that USF is exactly the kind of “teach a man to fish” program for the poor that at least some Republicans say holds the key to winning back the working class vote. Rather than just being a hand out, it puts an important tool for participating in the national economy in the hands of the poor so that they can find and keep jobs and become self-sufficient. Anyone who has applied for a job, or just about anything else these days, recognizes that having a mobile phone so your work can find you (especially if you are a day laborer or some other form of self-employed) is critical to success. Republicans should be arguing that this is exactly the kind of program that gives people tools to improve their lives rather than “creating dependencies,” etc.

 

Finally, as with so many of these things, legislation to end the “Obama phone” (as proposed by a number of Senators recently) would probably drive a serious spike into provision of rural wireless – and ultimately rural broadband and telephony generally.

 

So here are my Top Ten Ironies about the “Obama Phone.” Not that I expect actual history to matter much. But for my own amusement, and for the handful of telecom geeks like me that find this stuff entertaining, I elaborate below . . .

Continue reading

Exit Julius Genachowski

,

FCC Chairman Julius Genachowski will announce his intent to leave the FCC today.  Well, it is the season of the Exodus, and I expect that perhaps Genachowski will be able to say with particular vigor at his seder ”last year we were slaves, this year we are free.”

I will hopefully get something more up later, as I am in the midst of my own Passover preparations and then embarking immediately thereafter on the next leg of my “What Do You Have Say That’s So Important?” Tour. So I will limit myself at the moment to simply this. It is extremely easy to let the disappointment and bitterness over the high hopes I (and others) had back when Genachowski started in 2009 color his sins (whether of commission or omission) blacker than they should be. By the same token, it is easy to allow the lowered expectations we all had after 2010 to make his accomplishments seem better than they where.

For now, what is far more important than any attempt to summarize Genachowski’s putative legacy in a few paragraphs is determining who will succeed him. Certainly I agree with those who have said we want to see someone who will be a champion of the public interest, someone willing to stand up to a hostile Republican-controlled House and powerful incumbents. But I will add one particular plea to the President: Send us no scholar. Send us no visionary to lead us into the promised land of gigabit broadband, nor an ideologue wedded to a philosophy. Send us no seekers of grand bargains or painful compromises. Instead, send us someone who likes to get their hands dirty.

Even more so than in 2009, we stand at a peculiar juncture in the evolution of our national communications infrastructure. After years of anticipating convergence, it is upon us. Every aspect of our communications infrastructure — wireless, wireline, broadcasting, cable — is undergoing dramatic upheaval. There are at once tremendous opportunities for a rebirth of independent media and renewed competition, or a collapse into consolidation and control. We are at a delicate point in what Tim Wu in his 2010 book The Master Switch called “The Cycle,” the point where potentially open and disruptive communications technology reach a new equilibrium and begin to become closed and tame, serving a new elite as the previous structure served the old. Stopping that Cycle takes more than just vision (though vision is certainly required). It takes someone who loves the details with wonkish delight, but who can step back enough from them to stay focused on the bigger picture. Someone with a guiding philosophy that inform decisionmaking rather than an ideology that governs decisionmaking. Someone willing to make the hard call and piss people off, but mindful that the person who always does what he or she thinks is right regardless of cost eventually runs up a heck of a tab. Someone who captures the wisdom of Ecclesiastes 7:16-17: “Do not be too righteous, nor too wise — wherefore would you destroy yourself? Be not too wicked, nor too foolish — wherefore would you die before your time?”

In 2009 we wanted hope and change, in 2013 we need grit and courage.

Stay tuned . . . .

Some Reflections on McDowell Departure, And What Happens Next.

,

At yesterday’s open Federal Communications Commission (FCC) meeting, senior Commissioner Robert McDowell announced he would be stepping down sometime in the next few weeks. As regular readers know, I was often at odds with Commissioner McDowell’s positions. Despite coming from Comptel (the trade association for competing telecoms), McDowell generally hewed to a fairly rigid Libertarian line which holds that government intervention in the market to create or enhance competition doesn’t work and that the only reason for regulation is demonstrated market failure — with a standard for market failure so high as to constitute an almost insuperable barrier to action.

On the other hand, as I have also noted previously, McDowell came by his convictions honestly and defended them eloquently and thoroughly — his dissents were always well-researched and sprinkled with a plethora of citations. He was not a shill for any special interest, shifting his position based on the shifting financial interest of some industry patron. He was (and is, after all, he’s not dead) intellectually rigorous and intellectually honest, willing to engage intellectually, personally charming and quick witted — an articulate champion of a philosophy of governance I find anathema and that I believe disserves the public.

Which is, of course, what makes public policy and democracy work. We get together in the public square and duke it out in the marketplace of ideas to see who can carry the day.  While dealing with Commissioner McDowell was often frustrating from an advocacy perspective, it does not diminish my personal respect for the man.

Some additional thoughts, including on what happens next, below . . . .

 

Continue reading

The Progeny Waiver: Will the FCC Wipe Out Smart Grid? Save Thousands of Lives? Both? This Season on Spectrum Wars!

, , , , , , ,

Depending on whom you ask, the Progeny Waiver will either (a) totally wipe out the smart grid industry, annihilate wireless ISP service in urban areas, do untold millions of dollars of damage to the oil and gas industry, and wipe out hundreds of millions (possibly billions) of dollars in wireless products from baby monitors to garage door openers; (b) save thousands of lives annually by providing enhanced 9-1-1 geolocation so that EMTs and other first responders can find people inside apartment buildings and office complexes; (c) screw up EZ-Pass and other automatic toll readers, which use neighboring licensed spectrum; or (d) some combination of all of the above.

 

That’s not bad for a proceeding you probably never heard about.

 

For me, the Progeny Waiver is a microcosm of why it has become so damn hard to repurpose spectrum for new uses. The added twist here is that this time it is largely the unlicensed spectrum users acting like incumbents and saying that it will be the end of the universe if Progeny lights up its system (although the licensed neighbors say the same thing, pretty much), and Progeny, the licensee, arguing that everything will be JUST FINE, really, and if it isn’t too damn bad because we are licensed and they are unlicensed so there!

 

You might ask, “if this Progeny thingie is so gosh darn important, why have I never heard of it?” Well that’s why you read this blog, you clever reader you. This amazing little proceeding is still so deep in the bowels of the FCC that only the true spectrum wonks have noticed. But action now appears imminent, so consider this a sneak preview of this season’s favorite telecom reality show, Spectrum Wars.

What raises the stakes on this too damn high, however, is the implications for the future of unlicensed generally and the implications for the credibility of the FCC as an agency able to actually do the technical job of managing an increasingly complex spectrum world. Fairly or unfairly, everyone is going to compare this to Lightsquared (waiver, followed by worries about interference, arguments that the FCC failed to follow its own rules and procedures, blah blah). Let us add to this House Republicans who would love to call the FCC on the carpet for mismanaging spectrum – especially around unlicensed. Add to that the car manufacturers in the 5 GHz band and the federal users generally wanting to show that the FCC can’t adequately manage the stuff it has and you have a pack of circling sharks just waiting for the FCC to screw this one up and commence the feeding frenzy. So no pressure.

 

Happily, I have, if not a solution, at least a better way for the FCC to cover it’s rear-end and contain the damage, below . . . .

Continue reading

Shutting Down the Phone System: Comcast’s Very Scary Filing

, , , , , , ,

I’ve been sorting through the various filings at the FCC in the Phone Network to IP transition docket. I single out the 7-page filing by Comcast as the filing that scares the absolute bejeebers out of me.

 

Why? Because everyone else – no matter what their financial interest or political alignment – at least paid lip service to the idea that we ought to have some kind of regulation. Whether it’s a general nod to a “minimal and light touch regulatory regime” or a specific shopping list, the vast majority of commenters recognized then when you have something as big, complicated and utterly essential to people’s lives as the phone system, you need some kind of basic backstop for people to feel comfortable and to address problems that will invariably come up. Even AT&T has made it utterly clear that it does not see the future of phone service as a regulation-free zone.” Even staunch free market conservatives such as TechFreedom and Free State Foundation acknowledge that, as a practical matter, there is going to need to be some set of rules – even if they hope to keep these rules to what they regard as the barest minimum necessary.

 

Comcast, and Comcast alone, suggests otherwise. Comcast alone thinks we can manage the phone system as the Libertarian Nirvana. This smacks either of unbelievable hubris (“we’re so big everyone will have to deal with us – what could go wrong?”) or an incredible sense of market power (“we’re so big everyone will have to deal with us – heh heh heh”). Either way, this sends chills down my spine, because the filing signals loud and clear that Comcast – one of the largest providers of residential phone service in the United States, the largest residential broadband provider, and the single most powerful entity in U.S. telecom policy – simply doesn’t get it when it comes to the future of the phone system.

 

As I explain below, Comcast needs to understand that “With Great Market Share Comes Great Responsibility.” Because when you are this big, even what you don’t say can have huge consequences. Comcast is beyond “too big to fail.” It is now officially in its own regulatory category called “too big to be allowed to screw up.” Because Comcast is now so big, and so central to communications in the United States, that it could single-handedly crash the phone system by stupidly trying to manage it as if it were the cable world. Unless Comcast gets with the program and acknowledges the need for some kind of ongoing oversight of the phone system, this transition is guaranteed to become an utter disaster.

 

Continue reading

Cecilia Kang Is Right: There Really Could Be A Free National WiFi Network (of Networks)

, , ,

This past week, we’ve had quite the discussion around Cecilia Kang’s WashPo piece describing a plan by the FCC to create a national WiFi network by making the right decisions about how to allocate spectrum between licenses for auction and what to leave available for the unlicensed TV white spaces (“TVWS” aka “Super WiFi” aka “Wifi on steroids”). As Kang describes, the FCC’s opening of sufficient spectrum for TVWS could lead to “super WiFi networks (emphasis added) around the nation so powerful and broad in reach that consumers could use them to make calls  or surf the Internet without paying a cellphone bill every month.”

Needless to say, the article faced much pushback, despite a subsequent Washpo clarification to indicate the FCC was not, actually, planing to build a network. Amidst the various critics, there were some general defenders of the concept. My colleagues at EFF noted that increasing the availability of open spectrum for WiFi-type uses , and my friends at Free Press argued that such a free public wifi network (or, more accurately, series of networks) is in fact possible if the FCC makes enough good quality spectrum, suitable for broadband and usable out doors, available on an unlicensed basis.

I will now go a step further than any of my colleagues. I will boldly state that, if the FCC produces a solid 20 MHz of contiguous empty space for TV White spaces in the Incentive Auction proceeding, or even two 10 MHz guard channels that could nationally produce two decent sized LTE-for unlicensed channels, then we will have exactly the kind of free publicly available wifi Kang describes in her article. Or, “Yes Cecilia, there really is free national public wifi. Don’t let the haters and know-it-alls tell you otherwise.”

 

More below . . .

 

Continue reading

Lessons From The Derecho 9-1-1 Failure: When Industry Self-Regulation Is Not Enough.

, , , ,

The FCC released a fairly thorough report on the widespread 9-1-1 failure that followed the June 2012 “derecho” windstorm. For those who don’t remember, the derecho differs from most weather events by coming up almost without warning. According to the report, carriers had approximately two hours of warning from the time the derecho started in the Ohio Valley to when it hit the D.C. Metro region.

 

As a consequence of the damage done by the derecho, Northern Virginia experienced a massive failure of its 9-1-1 network, leaving over 1 million people with working phones (at least in some places) but no access to 9-1-1.  West Virginia experienced systemic problems as well, as a did a scattering of locations in other states impacted by the derecho. Verizon maintains the network in Northern Virginia, while West Virginia is managed by Frontier.

 

In both cases, the report concluded that both Verizon and Frontier failed to follow industry best practices or their own internal procedures. To be clear, this was not a massive dereliction of duty. But the accumulation of some corner cutting over here, some poor practice over there, meant that when the unpredicted crisis hit the system suffered critical failures precisely when most needed. Unlike just about every other part of the network, where providers balance the cost of hardening a network against potential events with a number of other factors, the core 9-1-1 system is explicitly supposed to remain operational in even the most extraordinary circumstances.  It is the foundation of public access to emergency services. As long as I can contact the phone network, I should be able to get 9-1-1 service. Public safety responders rely on the public reporting emergencies so that they can efficiently deploy resources as much as the public depends on its ability to contact emergency services through 9-1-1.

Continue reading