Tag: fcc

FCC “WiMAX Auction” Already Over — Not a Surprise, But Still Impressive.

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Some of you may recall that last month fellower Wetmachiner Greg Rose and I published our first industry report on the FCC’s Auction 86. We dubbed this the “WIMAX Auction” because the band at issue, the 2.5 GHz band, is the focus of major WIMAX activity in the U.S. and the report described the current state of the industry (including coverage maps for Clearwire and Sprint and the most extensive private database yet of who holds what in the band), likely outcomes in the auction, and what the behavior of bidders in the auction would tell us.

One prediction we made, that the auction itself would attract very little interest because it was an “ash and trash” auction of the leaving in the band, held up pretty well. The auction opened on October 27, and closed Friday, November 6. In other words, the entire auction lasted a week (4 bidding days) — which in FCC terms is greased lightning (the 700 MHz auction last year, for example, went on for 38 bidding days covering over 2 months). Total haul was $20 million, which will hopefully serve as a reminder to folks that spectrum auctions are not all multi-billion dollar gold mines.

As promised, we will release a post auction analysis available with the spectrum maps and databases for $799 within the next few months, once we (meaning Greg) have a chance to crunch the numbers and the round by round results. (Those who pre-ordered at the reduced rate when they bought the earlier report do not need to re-order). If you order now (the report is available through Muniwreless.com and through BroadbandCensus.com), you will not only pre-order the post-auction updates, but will get a copy of the original report with its industry analysis and coverage maps.

Stay tuned . . . .

Will Comcast/NBC Need FCC Approval? And How Would That Play Out?

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The industry news is abuzz with the upcoming Comcast/NC Universal Deal. According to recent reports, Comcast would buy 51% of NBC Universal (assuming Vivendi, which owns 20% at the moment, agreed with the terms). But beyond this general framework, it’s unclear whether all the assets held by NBC Universal would be included in the deal. Whether or not the FCC has jurisdiction hinges on this question.

The FCC does not have general jurisdiction over deals pertaining to content. NBC Universal owns lots of radio and television stations. Transfer of the licenses to the new Comcast-controlled entity would require FCC approval. But if the deal does not include the licenses, the FCC would probably lack a jurisdictional hook. Review of the deal would lie strictly in antitrust — at either the DoJ or Federal Trade Commission (FTC). From an antitrust perspective, the deal raises some concerns given the concentration of content and Comcast’s position vis-a-vis other existing subscription television providers (e.g., FIOS, DIRECTV) and potential new competitors (e.g., Netflix and other “over the top” video providers)). It may also concern broadcasters, both NBC affiliates worried about the change in management and other broadcasters worried how this would impact Comcast’s retrans negotiations. Much of this will also depend on whether the deal includes the movie production studios, prior existing content, and a host of other details that impact the universe of content distribution these days.

Assuming the TV and/or radio stations are included, it’s not entirely clear what happens. The D.C. Circuit eliminated the FCC’s existing ban on cable/television cross ownership (which applied only to broadcast licenses in a cable system’s franchise area) in 2002 on the basis that the D.C. Circuit didn’t like it (Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002). That decision does not directly impact the FCC’s general obligation under Section 310(d) to ensure that any transfer of a license serves the public interest. Comcast and NBC will certain push the Fox Television decision for all its worth, arguing that the DC Circuit decision to vacate the rule means that there are no circumstances under which the FCC could prevent a broadcast/cable cross-ownership rules. Opponents will argue that while the D.C. Circuit vacated a per se rule that any cable/broadcast combination was contrary to the public interest, that has zero impact on the Commission’s responsibility to resolve the question of whether transfer of these licenses to this cable company serves the public interest. I expect much confusion and argument on this point. Assuming the FCC has jurisdiction in the first place.

Stay tuned . . . .

McDowell Forgets He Already Voted That FCC Has Authority To Enforce NN Rules.

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I recently complained that no one else ever seems to follow the record on the network neutrality stuff. But Commissioner McDowell took the prize for failure to remember what he had previously voted for in this very proceeding back in March 2007 when the Commission voted out the Notice of Inquiry that started this whole thing. Mind you, McDowell should not feel too bad, given that nobody else at the FCC seems to remember this stuff either. Not when they wrote the Comcast/BitTorrent Order, nor even when they wrote the Notice of Proposed Rulemaking last week. Despite the fact that both items are actually in the same blasted docket. Because good God almighty, how hard is it for the staff at the FCC to actually know the friggin’ docket? It’s just the basis for this entire proceeding. And the entire collective agency cannot remember that it voted as settled law by 5-0 that it has authority to regulate and enforce network neutrality rules. And that McDowell not only voted in favor, he explicitly concurred!

I swear, it’s enough to make a poor obsessed policy wonk tear out what’s left of his hair and beard.

More below . . . .

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Why Don’t Broadcasters Become “Spectrum Innovators?” Because They Like Being Broadcasters.

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Can’t help but take a brief break from the Net Neutrality craziness to be mildly amused at Adam Thierer over at Tech Liberation Front. We have an increasing number of reports that Blair Levin wants to bribe broadcasters to get off their spectrum as part of the national broadband plan. Adam is very excited by this and, of course, brings up the usual Libertarian argument that because property solves all problems, we should just make the broadcast licenses property of the broadcasters and let the endless innovation begin.

The problem with argument is that broadcasters could already do this. Under 47 USC 336(b), broadcasters can use their digital spectrum to provide “ancillary and supplementary services.” In a series of orders, the FCC has said that as long as full-power broadcasters provide one free over the air digital channel, they can do whatever they want with the remaining spectrum — including lease it out in the secondary markets to someone else. Under the statute, broadcasters need to pay a fee for any such ancillary services that would be the functional equivalent of what the broadcasters would have paid for the spectrum at auction (47 USC 336(e)), which the FCC has fixed at 5% of any annual revenue from the ancillary services.

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Congrats to Adam Thierer! PFF to Get Needed New Blood and New Ideas (But Don't Worry, We'll Still Disagree On Most Things).

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Adam Thierer, long-time friend and opposite number in the Libertarian Camp, has just been named President of the Progress and Freedom Foundation, replacing Ken Ferree. Frankly, I hope Adam will bring a dose of new thinking tp PFF, since Ken Ferree has pretty much spent the last several years explaining at great length why everything the Powell FCC did was wonderful, rational, and the epitome of all that was right in public policy whereas Kevin Martin was a revisionist wanker and traitor to the Neocon Revolution. Much as I’m sure this was amusing for the participants, it did get old after a bit.

I expect Adam and I (and PFF) will continue to disagree on most things regulatory. But I have found in the past that Adam is an intelligent and engaging person willing to actually listen to what other people have to say before responding — and generally sticking to substance rather than the ad hominem or mindless talking points favored by too many here in DC. In other words, he is the sort of Free Market enthusiast/anti-regulatory advocate who makes me work for a living and is a necessary counterpoint to make any system work.

I wish him luck, but (if you will excuse me) not too much success.

Stay tuned . . . .

Proposed Wireless NN Rule “No Block, But Not No Lock?”

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An interesting tidbit from Washington Post Reporter Celia Kang’s interview with Ruth Milkman, the FCC’s Wireless Bureau Chief. Of interest, Milkman states that the application of network neutrality to wireless would still allow cellular companies to lock cell phones to wireless providers.

How are the proposed rules different from conditions on the C block during the 700 MHZ auction? There, net neutrality rules were put in place that allow any device to attach to the network and prevent Verizon Wireless, who won the spectrum, from blocking Web content.

The difference between what we are thinking about in the general NPRM (notice of proposed rule-making) and the C Block is that we are not proposing a no-locking rule. So I guess it’s no block but not no-lock. If consumers can get an unlocked device and not harm the network, the consumer ought to be able to attach that device to a network. Does a service provider have to unlock the device it provides to the consumer? The draft doesn’t go that extra step.

This is an interesting twist on the application of the third principle of the 2005 Internet Policy Statement:

To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.

(emphasis in original). This is generally taken as the application of the “Carterfone” principle (and the Internet Policy Statement cites the Carterfone decision in case anyone misses this point). This is the decision that held that AT&T could not refuse to allow you to connect any device, like and answering machine or a phone you owned or a dial-up modem, to the phone network.

Milkman is right that the freedom to connect to a network is not necessarily the same thing as the freedom to move a device that comes locked from one network to another. In the old days, it wasn’t necessary to say it that way because there weren’t other networks to attach your device. The question was whether somebody other than Ma Bell could make something and attach it to the phone network. By the time we got to multiple wireline networks serving the same neighborhood, the consumer electronics market was so well developed that the idea of trying to lock particular laptops or wireless routers to specific network providers did not make much sense. Indeed, even in the never ending fight over set-top boxes and cablecard, the fight is over the ability to attach to an MVPD network, not the ability to unlock a device and move it from one MVPD network to another.

Most of us have always assumed that network neutrality applied to wireless would include both “no blocking” of content and applications and “no locking” devices to networks. But I suppose it doesn’t have to be that way. And, of course, this does not stop the FCC from dealing with handset exclusivity separately.

Still, it comes as a bit of a surprise. Nice to have the heads up, and tip ‘o the hat to Celia for doing this series of interviews with important folks at the FCC.

Stay tuned . . . .

We Release Our First Actual Industry Report on Upcoming 2.5 GHz Auction.Go us and buy our stuff!

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Fellow Wetmachiner and all around spectrum genius Dr.Gregory Rose has written a report on the upcoming FCC Auction 86 in the 2.5 GHz BRS Band. Dubbed “The WiMAX Band: (2.5 GHz): Characteristics, Technology, Major Spectrum Holders in the BRS-EBS Service and Prospects for Auction 86, and edited by Harold Feld, this report contains information vital to understanding how the evolution of the 2.5 GHz band and the FCC auction beginning at the end of October will shape WiMAX Deployment in the United States. Resources with the Report include:

• A Searchable Database of All BRS and EBS Licensees and Spectrum Lessees. Anyone who has used the FCC’s Universal License Service knows how difficult it is to search for even basic information. The master database takes all the information and puts it into an easily searched Excel® spreadsheet.

• Special breakout tables and coverage maps for Clearwire and Sprint. Convenient tables and coverage maps show the coverage and relationships of these WiMAX giants.

• Analysis of the top 35 other providers. The report also lists the top 35 licensees in the band after Sprint and Clearwire, describing their general market areas and what their spectrum holdings say about their strategies.

The report cost $499 until FCC Auction 86 beginson October 27, at which point it goes up to $799. Those purchasing at $499 may buy the post-Auction update, scheduled to come out 3 months after Auction 86 closes, for a savings of $200 off the full post-auction price.

Copies of the report are available for sale at Broadbandcensus.com and at Muniwireless. Click HERE to get your copy today!

To see the full press release, click here.

To read the executive summary for free,click here.

Stay tuned . . . .

tags: wimax, wimax band, 2.5 GHz, wireless, spectrum, wimax report, wimax auction, fcc, fcc auction, fcc auction 86, harold feld, gregory rose, strength to strength develop-ed.

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Scott Cleland Needs To Work Harder On Ad Hominems. Or, better yet, skip them entirely.

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I happen to like Scott Cleland as a person, and I recognize he’s got job to do, but certain kinds of ad hominem attacks are just lazy — and stupid. I’m referring here to Cleland’s to attempts at “gotcha” posts in recent days. One directed against my employer Public Knowledge, the other directed against fellow traveler Free Press.

First, in the flap over Google Voice and blocking, Cleland accused PK of having a double standard — demanding AT&T not use “self-help” on blocking traffic stimulator sites while turning a blind eye to GV doing the same thing. I can understand Scott missing my quote the week earlier in Communications Daily condemning the practice (and suggesting that if they claim the right to block calls then networks can refuse to complete GV originating calls), Communications Daily is a paid subscription and not available online. But how did Cleland miss my initial post on the subject in which I said the FCC should investigate if Google really were blocking calls? (I’ll cut Cleland slack for not predicting my subsequent upping the urgency when Speakeasy’s decision to block these sites indicated that more VOIP providers are going to push this route.)

Now, Cleland has gone after Free Press by claiming that FP does not disclose its funders. As FP puts its annual reports and 990s online, this is a pretty stupid claim. Mind you, while I approve of disclosure, I’m always a big fan for answering substance. I get equally annoyed at my colleagues for acting as if the fact that someone once worked for a telco or takes money from some industry source automatically discredits them without looking at the merits of the argument. But claiming folks are hiding something when they put the information in a fairly accessible place on their webpage is just silly.

I anticipate that the response from Scott (and, inevitably, Brett — whose customers must be used to long ques for service given how much time he spends commenting on my blogs) will boil down to “well, under my definition of what I say your argument is, you are really hypocrite.” Happily, having now raised child up to age 11, and having grown up on Usenet in the 1980’s, I am familiar with this invitation to a meaningless debate whose purpose is to allow the other side to declare victory by continually redefining terms and reserving the right to be the ultimate judge of my conduct. I decline. Likewise, I decline the inevitable “Hah, your declining just proves I am right — you lying hypocrite loser” (I swear I can just write a Brett-bot. Heck, I would think he was a bot if I hadn’t met him). The beauty of the internet is that folks are free to draw their own conclusions.

Which is why skipping the silly ad hominems is probably the best route entirely. But if one does engage in such tactics (and folks on the pro-NN side are sadly just as guilty on occasion), at least try to avoid attacks so easily proven to be factually wrong.

Stay tuned . . . .

Speakeasy now blocks calls — this is getting serious.

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In the wake of reports that Google Voice is blocking calls to “traffic stimulator” sites (like free conference calling and free porn sites), Speakeasy has now changed its terms of service to explicitly block calls to these sites with its VOIP product. To its credit, Speakeasy directly informed its users (a friend forwarded me the email reproduced below). But this now elevates the question of VOIP providers and calls to a new level.

The FCC has danced around the regulatory status of “interconnected VOIP providers” (meaning VOIP providers that connect to the regular public switched voice network (or PSTN)). It has required regular phone companies to interconnect with VOIP providers in the famous Madison River case, and subjected VOIP providers to Enhanced 911 rules and CALEA, but has shied away from calling them telecommunications services. So the ability of VOIP providers to engage in the kind of “self-help” the FCC said was off-limits when the traditional Title II phone companies tried it. (Actual Order here for us legal buffs).

I’m not making a specific recommendation here because I’m still trying to gather info. As a general rule, I despise regulatory chameleons who shift regulatory treatment based on what their best interest. If you want to be a Title I information service and be able to refuse to connect calls, don’t complain when you get blocked because you are not eligible for mandatory interconnection under Title II. But I’m also well aware that reality matters and its intrinsic messiness means that these inclinations need to be guides rather than hard and fast rules. I am aware of my ignorance of the factual situation enough to know that I’d like to have a lot more information about the nature of the services and the regulatory environment (about which I know only enough to make my usual uninformed guesses).

But the one thing I can say definitively is that the longer this goes on without any FCC response, the more VOIP providers are going to look to save themselves money by blocking these “free conference call” sites.

Stay tuned . . . .

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AT&T Falls Back on “It's All About Google” Strategy

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For some years now, the opponents of Network Neutrality have had the same basic fallback strategy: When all else fails, make it about Google. So no surprise that AT&T, in a letter supposedly about the rather technical issue of “traffic pumping” opens with an attack on Google and Net Neutrality. Because if we have learned anything from our national healthcare debate, it is that it is more important to make this about how awful the other side is rather than debate the merits.

More below . . . .

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