Adelstein Publicly Calls for Open Access

Two important updates from my most recent post. First, Commissioner Adelstein publicly supported some kind of open access requirement for the 700 MHz auction licenses. Wooo Hoooo! For us policy geeks, it’s kind of like the moment when the Millenium Falcon comes out of nowhere and blasts the Imperial tie fighters targeting Luke as he barrels down toward the access port. Not that I had any doubt where Adelstein’s heart was, but it’s always reassuring to see him commit himself.

The second update is that DIRECTV and Echostar got out bid by some Brits for Intelsat. This makes it more likely that they will want to bid aggressively in the auction, assuming they think they can win.

Stay tuned . . . .

Adelstein to Tech Sector & Frontline: Can You Hear Me Now?

FCC Commissioner Jonathon Adelstein’s recent speech at the Wireles Communications Association (WCA) conference — and subsequent remarks to the press on the 700 MHz auction have caused quite a stir among those in the blogosphere following this issue. My fellow advocates of open access, such as Matt Stoller at Mydd.com, voiced considerable concern that Commissioner Adelstein (a long-time friend of the public interest) would come down against open-access proponent Frontline and against the position staked out by the Public Interest Spectrum Coalition, the 4G/Tech industry and others in support of larger license blocks. (Go take a look at my Impossibly Long Field Guide if you are lost on who these players are). OTOH, Publius over at Obsidian Wings has posted a defense of Adelstein, in which he also falls into the classic trap (as he does in his (much shorter than mine) auction guide for dummies) in believing that the telcos are the antichrist when, at least in my opinion, it’s a Hell of a lot more complicated. Yo, Netheads! You can hate other incumbents besides the Telcos! Really!

Anyway, to get back to the issue of the day: Adelstein’s speech and subsequent reactions. Matt and Publius raise good points, but neither sees the full picture here. But heck, that’s why folks need TotSF (or so I like to think), to fill in the blanks and provide the needed backstory for those not familiar with how life in the public policy sausage factory works (and its why the average TotSF post is about 4 single-spaced pages — yeah, I talk too much, I know).

Short version: Adelstein was not committing to a position or dissing a proposal. He was sending a signal to the tech guys and Frontline that if they want to get what they are asking for, they need to answer some very real and legitimate questions. Because Adelstein and McDowell are widely considered “swing votes” on critical questions (with Tate and Copps believed focused primarily on public safety), their public speeches (along with Chairman Martin’s of course) get particular scrutiny. Adelstein has not sold out (as feared by Stoller). Nor is Martin a “a wholly owned subsidiary of Verizon”, nor are 4G Coalition (or yr hmbl obdnt) “useful idiots,” as argued by Publius.

So what is going on (at least in my long-winded opinion)? See below….

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700 MHz Auction Update — FCC Republicans Interested In Public Interest Proposals While Senate Democrats Take a Pass.

Welcome once again to the topsy-turvy land of spectrum politics. Although Republican FCC Chair Kevin Martin shattered expectations by seeking comment on the Public Interest Spectrum Coalition (PISC) proposals for the 700 MHz auction, the Senate Democrats have decided to avoid having anyone from the public interest discuss the auction at next Thursday’s (June 14) hearing. In other words, despite my hope to the contrary, the Democratic Senate Commerce Committee is still playing spectrum politics under the old rules (treating this as an industry food fight and a chance to raise revenue), rather than using this as a chance to promote a robust public debate on how to ensure that wireless auctions promote competition and serve the public interest.

As a result, when the Senate Commerce Committee gathers to ask how the 700 MHz wireless auction can introduce new competitors for broadband and facilitate the open networks critical for civic engagement and innovation, they will hear from Mr. Dick Lynch of Verizon Wireless, Mr. Michael Small of Centennial Communications Corporation, and Dr. Amol R. Sarva of the Wireless Founders Coalition For Innovation. While Verizon has supported anonymous bidding, and the Wireless Founders Coalition supports open access, that hardly takes the place of having actual public interest representatives up there to press for real spectrum reform regardless of the impact on business models or bottom lines. As I say all too often (everyone repeat together) citizen movements must be citizen driven, and that includes giving us folks pushing the public interest an opportunity to speak rather than relegating us to the side-lines because corporate interests overlap with ours.

More below . . . .

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We Win Again On 3650-3700 MHz. So What Does It Mean?

Back in 2004-05, a bunch of us fought to open up the 3650-3700 MHz band for unlicensed use (Sometimes refered to as 3.65 GHz rather than 3650 MHz). While we did not get “pure” unlicensed, the FCC’s “hybrid unlicensed” regime gave us pretty much everything we wanted.

In August 2005, a group of tech firms led by Intel filed a Petition for Reconsideration. This group, which I dubbed the “WiMax Posse,” wanted the Commission to reverse itself and optimize the band for WiMax operations. Notably, this meant adopting a licensing regime instead of the open spectrum rules we won in March 2005.

By this time, Powell had left and been replaced with Kevin Martin. Martin had earned the eternal scorn of Netheads by deregulating DSL (actually a process begun by Powell). And, unlike Powell, Martin had no record of support for open spectrum. So even though the WiMax Posse and the various licensed wireless providers who came in to support them raised no new arguments, no one knew whether Martin would reaffirm the 2005 rules or side with the licensed spectrum/WiMax posse.

So I let out a huge sigh of relief and felt a modest sense of accomplishment when the FCC issued an Order denying the WiMax Posse Recon Petition and basically reaffirming our March 2005 win. Commissioner Adelstein had a very nice concurring statement highlighting the important roll played by WISPs and Community Wireless Networks (CWNs) in getting wireless connectivity to rural and underserved urban communities.

So what does this mean for wireless deployment for WISPs, CWNs, and muni systems? How do I read the FCC tea leaves in light of last month’s FCC decision terminating two important open spectrum proceedings? See below . . . .

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Slurpr! Slurpr! For Fun Legal Questions, It's A Wonderful Toy.

Numerous websites that follow wireless news have reported about a new wireless box called Slurpr, which allows someone to aggregate up to six open wifi access points at once. In just about the next sentence, of each of these reports warns of the potential legal consequences of “stealing wifi” by using an open network that the operator does not intend for open use. Or, as Glenn Fleishman put it: “This might get you arrested six times in one day.”

But will it? And, perhaps more importantly, should it? With the rise of applications like FON, wifi enabled phones, and now the introduction of Slurpr, we need to get this issue resolved sooner rather than later. Otherwise, we can expect to see more arrests of folks unaware they are committing a crime and another equipment/application industry killed off by regulatory uncertainty.

As I have argued before, it makes much better legal and policy sense to require access point operators (and the equipment manufacturers who set the defaults) responsible for their own equipment and require them to close a network rather than to require the public to treat all open networks as off limits unless the operator somehow expressly tells the user it’s o.k. Why shouldn’t the act of blasting an open network into a publicly accessible place or onto someone else’s property be sufficient invitation to use the network, especially when it would encourage people to set power levels to appropriate levels and stop imposing interference costs on the rest of us? Why on Earth do we want a legal presumption that imposes obligations on the broader public instead of the operator, makes it much harder for people that actively want to share their networks, and encourages (rather than discourages) interference problems and poor spectrum management? Most especially, why do we do this when creating this presumption actually flies in the face of the usual legal presumptions about intrusions of private property into the public sphere?

The only answer I can come up with is that network technologies appears to have the amazing power of turning certain people’s brains into pudding and making them forget about 10,000 years of human experience of living in urban environments. For further elaboration on these themes, see below . . .

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So What The Heck Is M2Z? And Why Do I Support It?

So recently, with all the spectrum stuff going on, I hear a lot of people asking about something called “M2Z,” usually like this: “So, what the heck is M2Z? And why should I care?”

Two very good questions. Briefly, M2Z is yet-another-plan to solve our national broadband woes through exclusive licensing. Specifically, it is about giving this one company a free, exclusive, national license for the 20 MHz of spectrum left over from the federal spectrum cleared for last summer’s AWS auction. While M2Z filed its application in May ’06, it took the FCC awhile to figure out what to do with it, since it doesn’t have any rules or pending proceedings that cover what M2Z wants. Finally, back in February ’07, the FCC issued a generic public notice of the application as required under the Communications Act and asked for piublic comment on what the heck to do about it.

Given my rather low opinion of Cyren Call’s efforts to get a free, national license, one might expect me to take a similar dim view of M2Z. Nor has M2Z helped its case much with some rather ham-handed “outreach” to the public interest community, by spamming the attendee list of the National Conference on Media Reform and creating a “Coalition for Free Broadband” website that looks all the world like an off-the-shelf Astroturf project.

Finally, Sascha Meinrath, who I look to for wisdom and advice on all matters spectrum, has written this blog entry on why he opposes the M2Z proposal.

Despite all this, I still think that M2Z deserves support. My employer Media Access Project filed a letter in support of M2Z. At the least, it deserves a good hard look before writing it off as yet another theft of spectrum via privatization.

Why? See below . . . .

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Look Who's Talking 700 MHz: Edwards, Bloggers, and Moveon, Oh my!

[Channeling Our Great Master, Stephen Colbert]
In an obvious attempt to curry favor and win the valuable “Tales of the Sausage Factory” endorsement, John Edwards released a letter to FCC Chairman Kevin Martin the day after I announced I was scoping out his campaign. The Edwards letter endorsed three key policy positions of the Public Interest Spectrum Coalition: open access, network neutrality, and — my all time favorite and beloved of intensly geeky issues no one else gets — anonymous bidding.

That’s right! The Edwards campaign is actually cluefull enough and willing enough to get “into the weeds” to the point of endorsing anonymous bidding. Of course, the Edwards letter does not actually mention “ToTSF” or even PISC by name, but I’m sure that was just an oversight from the amazing speed with which they rushed to endorse the PISC positions after hearing that I was “checking them out.”

So, for all you folks from the Edwards campaign no doubt hanging on these words, all I can say is — well done! A tremendous Tip of the Hat to all of you. Still, in fairness to the other candidates (both Republicans and Democrats), I will need to wait to see whether they chose to endorse the PISC proposals before giving an official ToTSF endorsement.

[End Colbert]

Of course, Edwards isn’t the only one to start talking about the 700 MHz auction and what it means to our broadband future. For who else is talking about PISC proposals and the impact it appears to be having on Washington, see below . . . .

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This Genuine Commemorative 1993 Petition for Recon Available If You Act Within 30 Days

Back before I finished law school, my employer Media Access Project was arguing that broadcast stations that did nothing but air program-length commercials (aka the Home Shopping Network and its various clones) did not serve the public interest and therefore did not deserve one of the scarce licenses made available for broadcast television. This being back in the day when there was still some expectation that broadcasters needed to demonstrate that they served the “public interest, convenience and necessity” as required by the statute, you understand. i.e. a long time ago.

As part of the 1992 Cable Act, Congress forced the FCC to have a proceeding to determine if stations that did only home shopping served the public interest. Unsurprisingly, the FCC found that there is a vital public interest need for people who could not otherwise get zirconium diamonds or commemorative collectors plates.

And you wonder why we learned to treat the “public interest” as a joke?

Anyway, my boss, Andy Schwartzman, filed a petition for reconsideration after the FCC issued its decision in 1993. Under the statute, you must file a petition for reconsideration before going to court. So MAP filed, arguing that the Commission had not really done its job when it claimed that Home Shopping Network and other such stations served the local community, and that the Commission had failed to consider other valuable uses of the spectrum.

And there the matter sat — for fourteen bloody years! — with us unable to go to court until the Commission resolved the damn thing. It became something of a joke. Every year, Andy would have a meeting with the Chairman of the FCC, and every year would ask about this petition. Every time someone new got named as head of the FCC’s Media Bureau, we’d trundle over with our wish list of outstanding proceedings, and at the top of the list was always Petition for Reconsideration in Docket No. 93-8. And every time, the Chairman or the Chief of the Media Bureau would promise to look into the matter. And the matter sat….and sat…..and sat….

Until Kevin Martin, under pressure from the new Democratic Congress, started putting the squeeze on the FCC staff to get the damn backlog under control. And then — Wonder of Wonders, Miracle of Miracles! — the staff decided to address our pending Petition for Recon. Of course, by this time, the record had gotten a tad “stale” (more like “mummified”) so the Bureau issued a Public Notice soliciting comment to refresh the record.

Aside from my personal venting, however, why should anyone care? After all, how many home shopping channels are there at this point (not broadcasters who run infomercials from 2 a.m. to 6 a.m., I mean broadcasters who only show home shopping)?

Because, as explained below, this proceeding actually provides an important opportunity to make two points. First, that the public interest really does matter. After years of neglect, there is (I hope) a body of very angry people ready to tell the FCC that the Commission cannot get away with treating the statutory requirement to serve the local community as a joke; that endless chances to buy adorable porceline figurines of kittens do not make up for the total absence of local programming and coverage of meaningful local news. Second, that there are plenty of more valuable uses for broadcast spectrum, like say opening it up for unlicensed use.

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The 700 MHz Auction as the Next Front In the Cable/Telco War.

There are many ways to parse the fights in the 700 MHz auction: incumbents v. new entrants, rural v. large incumbents, public safety v. commercial use, and the occassional suggestion by us in the public interest community. But, as I recently indicated elsewhere, an analysis of the band plan fight about large licenses v. small licenses reveals another interesting battle: Telcos v. Cable, with new entrants lining up with Telcos for large licenses and non-vertically integrated wireless carriers like T-Mobile aligning themselves with the cable-dominated consortium SpectrumCo.

What makes me believe license size in 700 MHz auction has become a new front in the fight between telcos and cable cable cos? Why has this new battleground emerged? And what are its implications?

See below . . . .

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I, For One, Welcome Our New Google Overlords

In a news report worthy of KBBL-TV’s Kent Brockman, MSNBC’s Olga Kharif writes of Google wielding it’s awesome and terrible powers in preparation for bidding in the 700 MHz Auction (as if I think about anything else these days). According to Kharif, “Google is wielding a surprising amount of power in the nation’s capital,” as demonstrated by “the influence Google is having on a closely watched government auction of $10 billion in licenses to provide wireless service.”

As evidence of Google’s supposed “influence,” Kharif points to Google’s involvement in the 4G Coalition “widely considered Google-led” (by whom, Kharif’s cat Mittens?) and how Martin’s express support for 4G on the large licenses v. small licenses issue shows that the FCC is likely to “play ball” with Google.

I might just let this go as another example of the Google-mania that has takne root in the press, but the normally perceptive and attentive Paul Kapustka on GigaOm made the same mistake. Because Martin said nice things about 4G and the DBS Guys (which I still thinks sounds like a Rock Band that performs at the CES Show), everyone is all “oooohhh the 4G guys are doing real well.” And the Google worshippers are all “Ah, Google Overlords, is there nothing you can’t control?”

Two critical facts tend to drop out of this analysis.

1) Martin lost his first-round bid to get the larger license-size reag plan through. That was the original plan, as noted by the Commission when it initiated this proceeding last August. This large license proposal got enormous push-back from SpectrumCo LLC (Comcast/TW/Cox/Sprint-Nextel) and the independent wireless incumbents (T-Mobile, MetroPCS) and the little rural guys. The fact that Martin was unable to get his fellow Republicans to vote with him and get the large-license band plan ratified in this round (as opposed to considered as one option among several in the Further Notice) is a set back for the supporters of large licenses.

2) The other supporters of large licenses, the ones Martin couldn’t mention for political reasons, are Verizon and AT&T. You might remember these telcos from such Kevin Martin movies as “Local Governments Hate Competition” and “Cyren Call: Song of Satan.” Verizon went so far as to hire ace auction expert Peter Cramton to write this paper on “Why Large Licenses In The 700 MHz Band Make Jesus Happy.”

[WHY the telcos and the cable cos are battling over the sze of licenses is extremely interesting and important, and is the subject of this post here.]

So yeah, Martin gave the big shout out to the DBS and 4G guys, since he’s not exactly going to say to the Dems “I’m puzzled why Ds who claim to hate cable market power back SpectrumCo against Veizon and AT&T.” And I think Martin genuinely does believe large licenses are the best way to get another national broadband competitor on the scene. (I also believe it, which is why I prefer large licenses a la the telcos and our Great Google Overlords.) But the idea that Martin did this just because Google redid the words “Federal Communications Commission” in rainbow and promised that they wouldn’t do evil with the licenses doesn’t exactly cut it. (No offense to Rick Whitt, whom I like and I think is a great lobbyist, but lets stay focused on the actual docket and relevant history, shall we?)

I suppose I should just accept that Google exerts a fascination on the trade press these days and let it go (and figure that anyone who wants my view on reality rather than Googleview will come here). But after spending last summer of watching Google and the rest of the tech industry unable to find their lobbying ass on net neutrality with both hands and a compass and a big sign saying “telcos, please spank us here”, while constantly hearing from the press and the cable cos how all of it was really the amazing Google Overlords at work has made me just a shade irritated.

Besides, it’s Friday afternoon and I’m due for my shabbos rest.

Stay tuned . . . .