Tales of the Sausage Factory

An insider’s view of the media hegemony

It's Always Nice When The FCC Listens

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A few months ago, fellow Wetmachiner Greg Rose and I wrote a wrote a white paper on how to improve the FCC’s processes, make FCC rulemakings and proceedings more accessible to the public, and generally increase the legitimacy and reliability of FCC decision making. As one relatively easy change, we suggested the FCC post the agenda for open meetings far enough in advance that people can come in and make their last pitches to the agency before “Sunshine” (the period when communications stop under the “Government In the Sunshine Act”) kick in. As we explained, providing the agenda at the last second often advantages insiders who hear when an item is likely to go on the agenda, who therefore rush in while those who don’t know the item is going on Sunshine will lose their last chance to rebut arguments or press their case.

So it was pleasant to see Chairman Martin announce that from now on he will publish the likely agenda 3 weeks in advance. That should be a big help to everyone — including the other Commissioners, who will not suddenly find themselves with a week to digest an agenda of a dozen items.

Yes, it is a relatively minor change, but it is important in two ways. First, practical details really do matter. That sometimes gets lost in the fight over specific substantive issues. Second, it demonstrates a willingness by Martin to listen to criticism and take action — at least on the low hanging fruit. Such things deserve notice and suitable (although not overly elaborate) praise. Remember, public policy is made by human beings, and you get what you reward.

Stay tuned . . . .

American Radio Relay League v. FCC, Why A Good Case Will Bring Confusion And Bad Results

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I should be overjoyed with the D.C. Circuit’s latest case: American Radio Relay League v. FCC. First, it affirms the right of the Commission to balance between unlicensed Part 15 users and licensed users, even where operation of Part 15 certified devices/services will cause occasional interference to traditional Sec. 301 licensees. Second, it requires the FCC to publish staff reports on which it relies in their entirety, rather than merely including in the record the parts with which it agrees. Third, it requires the FCC to address proposals by commenters with something more substantive than “well, we’ve always done it this way, so we see no need to change.”

All good news, yes? As a legal matter, absolutely. But as a practical matter, I expect it to slow down movement on the FCC’s white spaces proceeding. Why? Because it was a reversal and a reversal almost always causes the good folks in the Office of Engineering and Technology to go into paralysis for a few months while they try to figure out what the new legal standard is now. That the court actually affirmed the critical part on respecting the FCC’s balance between Part 15 and traditionally licensed services is likely to get lost in the noise — especially as we can expect NAB and other white spaces opponents to dwell on the reversal aspect and ignore what the court actually said. And, in the short term, OET now has to figure out how to issue a report on the WSD testing that conforms to the D.C. Circuit’s standard of disclosure. While I, lawyer and advocate that I am, consider this simply an exercise in “tell the truth and shame the devil,” we can expect that opponents will press their own reading of the case and that OET (and FCC’s Office of General Counsel) will now have the difficult and potentially time consuming task of deciding on the proper interpretation.

So a good case in fact, but more delays while the agency digests its implications.

More below . . . .

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YAMA (“Yet Another 'Mission Accomplished'”) On Wireless Carterfone.

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“Mission Accomplished” has become a useful catch phrase denoting a declaration of victory so premature as to be ironic, comical, and/or tragic. Sadly, Kevin Martin’s decision to circulate an Order denying the Skype Petition is the latest YAMA (for “yet another ‘Mission Accomplished’”). To refresh folk’s memories, in the Skype Petition, Skype asked the FCC to enforce the Broadband Policy Statement against wireless broadband networks: specifically, the part that says that consumers have the right to attach any device to the network that will not harm the network, and run any application of their choosing.

While not official, Martin has stated that he has circulated a draft Order dismissing the Petition, although Martin indicated at last week’s House 700 MHz hearing that he would dismiss the Petition “without prejudice” (meaning “not now, but try again later if things don’t improve”). Indeed, although none of the coverage of the 700 MHz hearing focused much on this, Martin’s statements and answers to questions indicate that he thinks (a) the C Block open device condition was the right thing to do, and (b) the FCC shouldn’t do anything else on “wireless Carterfone” until we see how the C Block open device condition works out.

While disappointing, this decision is hardly surprising. And, as usual, it is weirdly consistent with Kevin Martin’s First Church of the Market, Reformed ideology and a dash of realpolitik (waste not, want not after all, and if you can make what you think is the right decision serve your political ends, so much the better). Lamentably, Martin clearly has the votes from his fellow Republican Commissioners — although Tate appeared to hedge a bit. Nor do I expect there is much for Copps and Adelstein to do here, other then issue a strong dissent and make sure the damage (in the form of bad precedent) is limited. Indeed, there is a certain appeal to taking a dismissal without prejudice and living to fight another day rather than getting into a fight that may end up with stronger language a future Commission would need to overcome.

Some more analysis below . . . .

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My Testimony From Today

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Well, that was fun. I reprint my testimony as prepared, not as delivered. I also cut a very insider joke. I’d planned to start:

“Mr. Chairman, I understand that this is the open Commission meeting, so it is perhaps no surprise that we are running an hour late. Also, as I have not had time to complete this testimony, I ask for editorial privileges.”

But no one off the podium was likely to get it.

[Editorial note from John (to help search engines and any random Wetmachine readers who stumble upon this): This post concerns Harold Feld’s testimony at today’s FCC hearing at Stanford University.]

Stay tuned . . . .

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Comedy Central Send An Omen: South Park and the Upcomming FCC Hearing (spoiler alert!)

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As an inveterate procrastinator, I cannot complain too loudly that the Commission only just published the witness list for tomorrow’s (today’s) FCC hearing at Standford. Happily, it looks like I am the only lawyer on the panel. I am also amused to share the panel with George Ford, who took me to task after the last time we both testified in front of a federal agency about broadband — the Federal Trade Commission in February 2007 — for making my First Amendment arguments at the FTC under the guise of economics. My turn to remind him that we are in public interest land now, baby, where the Red Lion still rules the Jungle and maintaining the diversity of information sources is, according to Turner a government purpose of “the highest order.” Come to think of it, I’ll remind some of the Commissioners of that as well.

Meanwhile, on the flight in, I received an amazing omen from Comedy Central (which is why you should always fly Jet Blue if you can, so you can get 36 channels of omen potential). Tonight’s episode of South Park (spoiler alert!) had the internet getting “used up,” with the government rationing the internet for the internet refugees who came to Silicon Valley. But then Kyle, the little Jewish kid, shows them a better way. Rather than rationing users, you can just reboot the internet (which is kept by the federal government in an underground bunker) and try again. In the end, Stan’s father explains to everyone that it is the responsibility of users to manage their internet use respopnsibly rather than rely on others to ration it for them.

I choose to take this as an omen that I, the Jewish kid on the panel, will be sucessful in rebooting the Commission to get them to understand that it’s about the users, not about letting people in the middle ration the internet. Granted that Ben Scott actually looks more like Kyle, and I look more like Cartman. So perhaps I will just limit myself to making wise ass remarks and let Ben reboot the Commission. Either way is good.

Off to write some testimony.

Stay tuned . . . .

White Spaces and the CTIA Game Changer

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The idea of auctioning the broadcast white spaces, rather than opening them for unlicensed use, is not new. It started out as an NAB “poison pill” back in 2005, when we looked like we might be making progress on getting a pro-white spaces amendment in the DTV transition bill that ultimately became the Digital Tranisition Act of 2005. When the FCC reinvigorated the proceeding in 2006, the NAB managed to get the FCC to put the question of licensed v. unlicensed in the Further Notice. But the NAB doesn’t want any neighbors, either licensed or unlicensed, and has focused its efforts until now on trying to kill the whole idea rather than on trying to promote licensing and auctions rather than unlicensed.

But the idea of licensing the white spaces for cellular or backhaul has gained new life recently, particularly after the 700 MHz auction. Both Verizon’s Steven Zipperstein and analyst Coleman Bazelon recommended this in their testimony at the House Telecom Subcommitte hearing on the 700 MHz auction. That comes on top of a serious filing by CTIA on the benefits of auctioning some of the white space and leaving a smidge so that unlicensed technologies can continue to develop.

We’ve now gone from NAB poison pill to serious issue. The proposal has not yet gained traction, but it does not do to underestimate CTIA and its members because, particularly after the 700 MHz auction, a number of its members really need that spectrum. This has the potential to change the game radically, including shifting alliances as the threat becomes more credible.

Analysis below….

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Why you can't split D Block and PSST

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Unsurprisingly, folks are now proposing to split the D Block from the public safety spectrum, auction the commercial spectrum, and use the money to build a separate public safety network. This got a bunch of attention at today’s House Subcommittee hearing. Despite my frantic attempts to subtly signal I had something relevant to say, no one wanted to hear my opinion on the matter (or anything else either, apparently my opening statement was sufficiently overwhelming that the Republicans did not dare challenge me and the Dems felt nothing further was required). Too bad, because I could have spared everyone about an hour of yacking by explaining why it won’t work.

Or, more technically, to make this work requires such drastic changes in the band plan that it is impossible to predict how much money such an auction would make, if anything. I’m aware Dr. Bazelon gives an estimate of $5 billion or so in his testimony, but I think his use of the A Block demand as a proxy is overly optimistic. Trying to predict spectrum auction results is always perilous, because there are so many factors and every spectrum auction is different from every other in significant ways. But in this case, the difference between the A Block issues and the possible D block issues are of significant magnitude that I anticipate major problems.

Bottom line: I think it would take months to resolve the engineering issues, and that an auction based on necessary rules would fetch very little money.

More below . . . .

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This Week I Get My Wonk On, Next Week I Am A Free Man.

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Passover comes late this year. It doesn’t start until Saturday night, April 19. Getting ready for Passover is a phenomenal pain in the rear end, because it involves all sort of complicated cleaning things. So this time of year is really busy for us true believer types.

Which is why the Good Lord has made it such a plentiful season for critical hearings. This week on Tuesday morning, I will testify before the House Telecom Subcommittee at the incredibly crowded second panel on the 700 MHz Auction aftermath. Then it’s out to California to catch the FCC Hearing on Network Management (official witness list still not posted, but my name turned up in Comm Daily on the short list).

Mind you, I am extremely happy to have the opportunity to testify before the House and all that. Indeed, given how much I’ve lived these things (especially the spectrum stuff), I’d be really miffed if I didn’t get a chance to speak my piece. I just wish it could be a little, y’know, less hectic.

At least I will be able to say with conviction at my Passover celebration “Now I am a free man.”

Stay tuned . . .

Comcast /BitTorrent Update: Important Filings by Topolski, Peha, and Ou (and some analysis by yr hmbl obdnt).

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Most folks do not monitor the day-to-day filings in the Broadband Practices Notice of Inquiry, Docket No. 07-52, the proceeding which has become the open docket part of the regulatory discussion on Comcast’s treatment of p2p uploads. Lucky them. But the sifting of this endless stream of regulatory filings has yielded some rather important nuggets of gold in the last few weeks that deserve much greater attention for anyone who cares about the substance of the debate. As I discuss below, three recent filings deserve particular attention:

a) Robert Topolski demonstrates that Comcast blocks p2p uploads at a remarkably consistent rate, at any time of day or night when the test takes place, and regardless of the nature of the content uploaded. This is utterly inconsistent with Comcast’s stated position that it “delays” p2p traffic only during times of peak network congestion. Topolski adds some other interesting details as well.

b) Jon Peha, a Professor of electrical engineering and public policy at Carnegie Mellon, provides his own explanation why Comcast’s characterization of its “network management practice” as merely “delaying” p2p uploads and its claim that this practice is in accord with general industry practice is nonsense.

c) In defense of Comcast (or at least, in opposition to any government action to restrict the ability of ISPs to target p2p traffic specifically), George Ou filed this this piece on how bittorrent and other p2p applications exploit certain features of TCP, a critical part of the protocol suite that makes the internet possible. Ou argues that as a result of this feature of p2p, heavy users of these applications will always be able to seize the vast majority of available bandwidth on the system to the disadvantage of all other users. Accordingly, the FCC should acknowledge that it is a “reasonable network management” practice to target p2p applications specifically as opposed to heavy users or all applications generally.

My analysis of each filing, and something of a response to Ou, below . . . .

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