Tag: fcc

Wireless Bureau Wisely Decides To Not Play Referee In 3.65 GHz Band

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I have a fondness for the 3.65 GHz band for a number of reasons. In the first place, I was heavily involved in the the fight over the rules. For another, it seems to be filing an important niche in the wireless broadband ecosystem. So I was pleased when the FCC’s Wireless Bureau resisted the invitation to get involved in interference disputes in the band. OTOH, it also highlights the value of having a referee with jurisdiction in case something does go wrong.

I know I’m getting to this late, as the decision came out at the end of December, but it’s been a busy time. More below . . .

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FCC Issues Excellent Wireless Microphone Order — Perhaps NAB Will Rely Less on Scare Tactics and Celebrity Letters Now.

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Time to clear up a little piece of unfinished business for which I and this humble blog can claim some modest responsibility. The FCC finally issued it’s long awaited Order on wireless microphones stemming from this blog post and the subsequent complaint/Petition for Rulemaking by the Public Interest Spectrum Coalition (to which a special shout out to the folks at New America Wireless Future is due, given the fantastic amount of work they did on assembling evidence and helping draft the document).

As one can tell from this FCC press release describing the details, we pretty much got what we wanted — although not entirely and not in the way we expected. But, as I noted in this press statement in my role as Legal Director of Public Knowledge, we’re very happy with how things turned out. Briefly:
(a) all wireless mic users are now granted legal status, this is done pursuant to the FCC’s Part 15 rules for unlicensed rather than the “license by rule” that we suggested, but my only regret about that is I didn’t think of it when we filed.
(b) Everyone using wireless microphones needs to clear out of the 700 MHz band by Jun 12, 2010 — one year after the DTV transition and 15 months after the original date proposed by the FCC. Given how the Broadway people have been telling the FCC for months how they are off the 700 MHz band, this should not be too much of a hardship — especially for those who had no right to be there in the first place.
(c) The FCC will invest a boatload of its own resources, and gin up the FCC 2.0 machinery, to get the word out to folks and help consumers, churches, etc. handle the transition.
(d) The FCC will require that wireless microphones have signs and labels going forward to make sure that people understand the difference between licensed users and unlicensed users.

In addition, the FCC is having a further notice of proposed rulemaking that will:
1) Set the rules for the new Part 15 unlicensed wireless microphones.
2) Will examine whether to expand the class of Part 74 Subpart H eligible licensees to see if they should expand the class to give interference protection to some set of users — which would include who gets to be in the database of licensed services protected from operation of TV white spaces devices.

Yeah, that kicks the can down the road rather than saying flat out “anyone who was using a wireless microphone illegally is not entitled to protection against the TV white spaces devices, which went through the legal process and got approved.” But I can most definitely live with that. For one thing, I am confident that in an evidence-driven FCC which places consumer interests first, as demonstrated by this Order with its unprecedented investment of FCC resources for outreach (which we had not even dreamed of requesting except in the most general way of offering to help), will focus on the real question of whether or not there is interference and if so how to strike the appropriate balance between allowing new technologies and protecting existing users. Hopefully, this will inspire white spaces opponents to focus on engineering rather than trying to use scare tactics and celebrity “star power”.

More below . . .

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Last day to get your comments to the FCC about Net Neutrality

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OK, get off your duff & file your comment with the FCC. Here’s why and how.

My comment:

The Internet is a fundamental engine of our democracy. It’s the equivalent in our day of what “the press” was in the earliest days of our republic. Yielding control of the Internet to large corporations is a betrayal of the bedrock values upon which our nation was founded and still rests.

In the words of MIT professor Daniel Weitzner, in testimony given before the FCC at Harvard, “What’s at stake is everyone’s ability to communicate with everyone else.”

In effect, the FCC must decide whether the Internet is to be optimized as a vital tool for promoting and protecting citizen engagement with each other and with their government, or as a tool for maximizing shareholder value of large corporations. It’s a simple fact that you cannot optimize for both. If the FCC optimizes for democracy and “everyone’s ability to communicate with everyone else”, there will still be ample room for lots of people and lots of corporations to make money.

But if the FCC decides to void the principles of Net Neutrality in the interests of corporations, our democracy will be decisively and perhaps irremediably harmed.

The FCC must now act decisively in the public interest by enacting strong rules that keep the Internet free from blocking, censorship and discrimination.

Don’t give in to pressure from AT&T, Comcast, Verizon and their lobbyists. Stand with us in support of a strong Net Neutrality rule.

Do it now. It will take two minutes. It’s important. Do it. (Weitzner citation from this brilliant eye-witness report ).

Does Comcast Fear To Win Too Much?

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I grant I wasn’t there, but pretty much everyone who was seems to think the D.C. Circuit oral argument in the Comcast/BitTorrent case was an utter disaster for the FCC/pro-NN forces and a total triumph for Comcast. Given my previously voiced opinion about the judicial activists on the D.C. Circuit, I can’t say this surprises me even in light of the previous precedent. Indeed, from what I have heard, the D.C. Circuit appeared breathtakingly eager to rush past the procedural issues and declare that the FCC has absolutely no jurisdiction to regulate anything an ISP ever does, ever.

So why has Comcast, which (along with its trade association) has argued that it would violate its First Amendment rights for the FCC to regulate its conduct as an ISP, posted this blog entry to explain that of course they totally support FCC regulation of broadband ISPs, under the right circumstances, etc.?

Answer: Comcast fears to win too much. For Comcast (and other broadband providers), the ideal world consists of an FCC with jurisdiction but no authority. That is to say, they want an FCC that appears to have authority to do something, but when push comes to shove is prevented from actually doing anything Comcast doesn’t like. Which is why Comcast wanted to win on procedure and, perhaps, get the court to threaten the FCC that it had no authority. In that universe (which could still come to pass), Comcast could keep Congress from giving the FCC explicit authority by saying it has jurisdiction but keep the FCC from doing anything by claiming that it lacked authority for any specific action.

But there is every indication that the D.C. Circuit will go much further, and find that the FCC has no jurisdiction to even consider regulation of ISP behavior no matter what the circumstances, because it doesn’t believe that ancillary authority exists. While that sounds like exactly what Comcast would want, it scares them silly. Because even the fear of this sort of huge loss creates a panic that could lead Congress explicitly delegating the FCC extremely clear and unambiguous authority.

More, including a shout out to all my fellow Buffy the Vampire Slayer fans, below . . . .

UPDATE: According to this blog post by Washpo Reporter Cecilia Kang, I’m not the only one thinking this way. A few more choice remarks from NCTA’s Kyle McSlarrow about how the FCC’s role is to be a big ATM for his members may get even this Congress off it’s rear end.

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Retrans Food Fight! Why This Administration Will Deal With Cable After All.

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Remember how once whacky old Kevin Martin the Cable Playa Hatah was gone the FCC was gonna forget all about cable? Because, after all, cable was all vibrant and competitive and stuff and who needs dumb old cable when everyone has Broadband?

Item one in communications land for the new year is the first round of retransmission fights. The biggies at the moment are Sinclair/Mediacom, where Mediacom has tried to get the FCC to weigh in on its side, TWC v. Fox, TWC v. Food Network/Scripps Howard (which no longer includes Scripps broadcasting properties), and Cablevision v. Food Network. Although TWC and Mediacom agreed to extensions with the various programmers to continue to try to sort things out, and TWC ultimately reached an agreement with Fox, Cablevision and Food Network ended up in stalemate.

Result, Cablevision has dropped Food Network and HGTV. In the war for the hearts and minds of customers, the Food Network folks have launched web based outreach with clips and fact sheets. Cablevision’s response is a little harder to find, but digging through their customer service led me to this page which basically says “Scripps wanted to much money for their programming, we hope you enjoy the other cooking shows we have.” Unfortunately for Scripps, the broadcast TV fights have significantly overshadowed them.

Which brings us to the first point of importance for all those folks in policyland who keep insisting that “broadcasting is dead.” You will notice that from the perspective of people reporting news to folks outside policyland, keeping broadcast programming was much bigger news than people actually losing popular cable-only programming. Second point – this is Food Network’s first round of negotiations as a stand alone cable company without also negotiating for broadcast properties. This gives them significantly less leverage.

But all these pale beside the third point — cable (and I mean cable, not “MVPD”) regulatory issues remain important and the market power and consumer protection issue don’t disappear because we now have multiple delivery platforms. Millions of people spend billions of dollars on these services and care a heck of a lot about them. Like it or not, and despite all the coventional wisdom about youtube, twitter, teh inerwebz, blah blah, this medium and these programmers dominate — indeed, arguably define — our common national culture. That means cable policy will continue to be a vital part of the FCC’s focus despite a desire to do sexier things like wireless and broadband.

Which means the folks on the 8th Floor need to wake up, grudgingly admit that whacky old Kevin Martin wasn’t so whacky after all, and reopen the proceedings on wholesale cable programming unbundling, retrans, leased access, Section 616 reform, and the other issues around boring cable programming the FCC hoped it could forget about because broadband and wireless would solve evrything and who watched TV anymore anyway.

Stay tuned . . . .

So Did Anything Actually Happen In Telecom In 2009? And What That Means for 2010.

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Ah, the inevitable end of the year summation post. This year certainly started with massive change of the relevant players in Congress, at the FCC, and in the Administration generally. It also began with some massive changes for me personally. Within the first month, Congress passed an economic stimulus bill that focused on the broader broadband ecology and explicitly required we shift from praying to the Gods of the Marketplace to trying to grapple with the very difficult challenge of developing a 21st Century information infrastructure.

So then what happened? More, including the inevitable overused sports metaphor, below . . . .

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DC Gives Hollywood A Little Holiday Pick Me Up To Show They Care — With A Surprise SOC Ending.

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The Copyright Mafia have certainly been feeling needy recently. Maybe it’s all that talk about how wonderful broadband access is — with all the awful piracy it creates — clouding out how movies made record breaking profits this year. Maybe it’s because the London Times linked to studies that show that musicians (but not labels) do better in a world of file sharing. Maybe it’s just the sadness of winter time and the end of a decade in which PK managed to hold off nearly all the awful legislation the Copyright Mafia proposed. But whatever it is, Hollywood has been saying to it’s friends in DC “hold me,” and their DC friends have been ready to oblige.

But what caught my attention was not just the usual round of festivities by Democrats to reassure Hollywood before an election year that “we love you like no other, don’t pay that foolish broadband stuff no mind.” No, it was the surprise statement by Professor Chris Yoo that if the FCC gave Hollywood a waiver so it could shut off your television’s analog outputs (what we call in this biz Selectable Output Control or SOC), it would help stop live sports piracy?

Funny, whenever we say to the folks at the FCC (or anywhere else) that Hollywood wants to control analog outputs generally and that after they get a “narrow waiver” for releasing movies to VoD earlier than they do on DVD, they will come after live sports events, the MPAA does that eye-rolling thing where ya know, whacky info commies and their crazy conspiracy theories about how big bad Hollywood wants to control everything and the FCC staff get those fixed smiles on their faces that anyone who has ever dealt with teenagers will recognize as the “I’m stuck sitting here pretending to listen until you go” look.

So to have Yoo come out and — apparently unprompted and after a hearing that had nothing whatsoever to do with SOC — come out and say “yeah, the FCC ought to waive SOC rules for live sporting events, because everyone knows analog outputs are just STRAWS OF PIRACY SUCKING THE LIFEBLOOD OF THE CONTENT INDUSTRY INTO THE GREEDY CRIMINAL MORASS THAT IS TEH INTERWEBZ” kinda grabbed my attention. As I always tell my critics — if I’m delusional, it seems to be a functional and prescient sort of delusion.

More below . . .

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Could the FCC Structure A Broadcaster Clearance Auction Without Congress? Yeah, actually . . .

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Progress and Freedom Foundation has recently published this piece by Adam Theirer and Barbara Esbin on how encouraging a deal between broadcasters and wireless providers to reduce the spectrum used by broadcasters and auction more spectrum for wireless use would serve the public interest. The piece raises some good points. For one thing, it is happily free of the “broadcasters are obsolete and we ought to take their spectrum back” rhetoric that often accompanies these proposals (not from PFF, I should add, but from a number of others). But the paper is woefully short on specifics. It touts the value of such a deal (freeing up spectrum for wireless) and lays out some general approaches, then urges the FCC and Congress to broker a deal between the broadcasters and the wireless industry through a number of possible auction mechanisms.

And now, the FCC has issued a public notice in the National Broadband Plan soliciting input on what they should think about using broadcast spectrum as part of the national broadband plan.

This got me thinking. Is there a mechanism the FCC could use, consistent with existing law, which would allow for the sort of broadcast band clearance the FCC would like to see? And, as a bonus, could this also clear some space for white space use? After some consideration, I hatched the scheme below. It is somewhat slower than than the wireless industry would like. I expect it would take about 5 years to finish the transition. But that is not bad given that it took 4 years to manage the DTV transition and auction from the time Congress set the hard date in 2005 to the end of analog broadcasting in June 2009. Also, my plan would allow continuing gradual build out, and combines some sticks to go with the carrots.

I’ll add that I’m not convinced this is worth doing. I think the current obsession with broadcast spectrum as the solution for the upcoming spectrum crisis suffers the same myopia as focusing on offshore drilling to cure the energy crisis — it defers the crunch but doesn’t solve the underlying problem. Wireless demand is going to continue, and we need to fundamentally change how we manage spectrum access (rather than spectrum allocation) to remain on a sustainable path for growth. I also point out, as we discovered while doing the broadcast white spaces proceeding, that there are a lot of non-broadcast uses in the existing television bands that are not broadcast users. These secondary services are going to get awfully squeezed if we crunch the broadcast bands further.

All that said, a well constructed auction could free up a nice chunk of spectrum in the short term that could promote wireless services and competition — especially if it came with a spectrum cap so VZ and AT&T didn’t hog all the good stuff again.

More below . . . . .

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An Open Letter To Blair Levin On The Subject of National Broadband Public Notices

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Dear Blair:

I surrender! I admit defeat. I cry “uncle.” You win. Despite my earlier doubts, I am now prepared to say the National Broadband Plan process is the most open, transparent, comprehensive, bestest and wonderfullest proceeding ever in the entire history of the FCC since passage of the Communications Act of 1934! Just please, please PLEASE no more public notices. [break off into uncontrolled sobbing]

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White Spaces Lurches Forward Again. OET Issues Good But Weird Proposal.

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Over a year ago, the FCC took a major leap forward on deployment of broadband and rethinking our national spectrum policy by voting to open the unused broadcast channels for unlicensed use (aka the “broadcast white spaces”). The Order left a bunch of questions unanswered, such as who would run the proposed database of available frequencies for white space use. Petitions for Recon got filed, lots of requests for revision and modification of the rules got made, and then nothing happened.

In fairness to OET, it’s been a busy year. First there was a change in administration, then it was “all DTV all the time” until the magic June 12 deadline. Then it was bringing on a new FCC Chair and two additional new Commissioners. Then it was “National Broadband Plan all the time.” But still, it was with a tremendous sense of relief that the process had not utterly vanish off the FCC’s radar screen that I saw the FCC’s Office of Engineering and Technology release a Public Notice on the database. At last! We can get moving on this again, and hopefully move forward on the most promising ‘disruptive’ technology currently in the hopper.

And move we are, in a very peculiar fashion. Rather than resolve the outstanding questions about how the database provider will collect money, operate the database, or whether the database will be exclusive or non-exclusive, the Public Notice asks would-be database managers to submit proposals that would cover these issues. Further, parties have until January 4, 2010 to submit proposals. The FCC will take comment from members of the public on the proposals a month later.

I label this approach “good, but weird.” On the one hand, this seems to my non-engineering and well ordered mind to be totally backwards. How the heck can anyone tell if they want to manage the database when they don’t even know what the requirements are. On the other hand, this basically accomplishes the same thing by having would-be operators that have been pestering the FCC to resolve the matter and trying to get the FCC to adopt rules that favor their own technology/business model a chance to stop pretending that these rules are neutral and the opportunity to make their pitch directly to the FCC. It also cuts down on the number of steps until we actually have a functioning database and can start deploying the technology. Finally, having just gone back and looked at the 2008 Order, the FCC was fairly explicit (Par. 221) that this was always the plan.

And, as usual, I really wish the FCC would not sit around taking months to decide things and then want an immediate response out of us poor public interest folks with our limited resources.

But on the whole, I’m very happy indeed.

More below . . .

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