Tag: fcc

White Spaces Update — Field Testing Can Be Soooo Educational. You Always Find Something You Don’t Expect.

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As folks may recall, the primary opponents of opening the broadcast white spaces for use, the broadcasters and the wireless microphone manufacturers — notably our good friend and radio pirate Shure, Inc. (official slogan:“We get to break the law ’cause we sound so good”) — insisted that the FCC conduct field tests on the white spaces prototypes. Of course, because these are concept prototypes and not functioning devices certified to some actual standard, everyone knew this would leave lots of leeway for the broadcasters and the wireless microphone folks to declare the “tests” a “failure” regardless of the actual results. Which, of course, they did. Needless to say, Phillips (which makes one of the prototypes) said the opposite, and it all depends on whether you mean “the device functioned perfectly as if there were actually some standards for building a functioning device” or “the device proved it could detect occupied channels at whatever sensitivity the FCC decides is necessary.” The FCC engineers, wisely, made no comment and went back to their labs to analyze the actual data.

But one of the nice things about field testing is that you learn the most amazing things that you can never learn in a lab, as demonstrated by this ex parte filed by Ed Thomas for the White Spaces Coalition, the industry group that backs opening the white spaces. Apparently, in front of eye witnesses (including the FCC’s engineers), both broadcasters and unauthorized wireless microphone users in the Broadway field test operated wireless microphones on active television channels, at power levels well above what white spaces advocates propose for mobile devices. All apparently without interfering with anybody’s television reception or even — in the case of the unauthorized Broadway users — screwing up the hundreds of other illegal wireless microphones in the neighboring theaters.

A few rather important take aways here: (1) the danger of interference claims by broadcasters and Shure are utterly bogus, as the wireless microphones do not screw up either television reception or each other; (b) the broadcasters and Shure know their interference claims are bogus. If they actually cared on iota about possible interference, they would not casually operate high power wireless microphones on the same channel as active television broadcasts and as each other. Instead, they are so unconcerned about interference that they can’t even remember to pretend to care about basic interference concerns when they are conducting a field test in front of the FCC’s own engineers.

A bit more elaboration on these points below . . . .

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The FCC Releases the Comcast Complaint Order Part I — Why This Is A Huge Win.

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The FCC just released the text of the Order adopted on August 1 finding for Free Press on the Comcast Complaint and Declaratory ruling and denying Vuze’s Petition for Rulemaking. You can get the pdf here.

Larry Lessig pretty much says it all with his letter commending the FCC on its decision. For myself, I see this as another in a series of important wins, building on previous wins. Read it, particularly the footnotes, and you will find reference to the C Block openness conditions, the Adelphia Transaction Order, and every other baby step along the road that proved absolutely critical to getting us this far.

And, just as with those victories, we did not imagine for one moment that we had finished our task or that we had solved our problems. The danger to an open internet that remains a platform “as diverse as human thought” in the face of broadband providers trying to convert it into a combination shopping mall, movieplex and theme park continues. But we prevented Comcast from creating an “industry standard” around blocking or degrading peer-2-peer applications and put every ISP on notice that they will need to make real disclosure of their “network management practices” when those practices block or degrade subscriber choices. That the market would not respond on its own — at least not in a positive way — is evidenced by the fact that Comcast, despite all the negative publicity, promises to change, etc., is still targeting bittorrent. To the contrary, had we not acted, I do not doubt that other broadband ISPs would, over time, have adopted this and similar techniques, and without notifying their subscribers in any meaningful way.

We have also created another positive precedent for the day when a future FCC or Congress will adopt rules that provide the level of protection we need to maintain an open and competitive internet. This FCC opinion establishes the jurisdictional basis for any future rulemaking and, while declining to adopt rules now, explicitly states that the FCC retains the jurisdiction to create rules in the future — noting that the Carterfone network attachment rules began as an adjudication and ultimately culminated in Part 68 of the Commission’s rules. Despite a raft of theories (conspiracy or otherwise) to the contrary, this Order does not weaken our efforts to get general rules or get legislation passed. To the contrary, by recognizing that rules protecting the openness of the Internet further the important interests of the First Amendment (Par. 43 n. 203), this Order strengthens our ability to get rules or legislation in the future.

While it leaves certain critical questions — such as whether a third party can pay a broadband access provider for “premium” treatment regardless of user preferences — unresolved, it does so in a way that leaves us free to come back without any bad precedent or presumption. Copps and Adelstein can continue to press for adoption of a fifth principle on non-discrimination without fear that voting for this Order somehow put them in a box.

More below . . . .

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The Return of the Great Google Overlords and I Do Another Rant On Why Citizen Movements Are Citizen Driven.

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I suppose it was inevitable. Let Google enter the policy arena and suddenly that’s all anyone will ever think about. Never mind that Media Access Project and New America Foundation first participated in this policy exercise back in the spectrum task force days in 2002, that we mobilized around this issue (and I blogged on it) back in 2004 before Google or Microsoft showed up, or that New America Foundation has published some ungodly amount of content on this well before Google even had a wireless policy. No, like last summer and the 700 MHz auction, or the 2006 Net Neutrality fight, it is all about the Great Google Overlords blah blah blah. Because everyone knows that no one in Washington really cares about the public interest groups and its all about refereeing industry food fights.

I should note that the utter refusal of the trade press (and others who should know better) leads them to consistently screw up on where the Commission actually goes. Flashback to last November, and I defy you to find any oh-so wise insider with the cynicism that passes for wisdom these days who thought for a moment that a Kevin Martin-led FCC would even consider our complaint about Comcast blocking BitTorrent. When Martin defied expectation and put it out on notice, no one thought we had a chance of getting an actual judgment in our favor. And of course, when we did win, it didn’t disprove anything, since it was either all the work of the Great Google Overlords or a clever reverse fake by Martin to screw Net Neutrality.

I’d let it go as excellent political cover (since God knows most industry lobbyists make the same mistake) and a reason why folks should read my blog to get some balance, but the pernicious myth that no one in Washington cares about anything but major corporate players is one of those things that becomes self-fulfilling prophecy when regular citizens buy into it. The fact is that decisionmakers and policy folks are all over the map here in DC. You will find people who are wholly owned subsidiaries, people who are driven exclusively by ideology and — surprising to many — a large number of folks in both parties trying to do what they think is the right thing given all the information they have and what they think is right. I class all five FCC Commissioners, even the ones with whom I most frequently disagree, as being in this category.

Does it matter that Google is involved? Of course. Not only is it a question of available lobbying resources, but also a question of whether anyone is likely to take advantage of the rule change. That’s not always determinative, but it certainly helps. As the Frontline debacle shows, FCC Commissioners need to worry about what happens if they guess wrong, while still finding the courage to try new things when required. Seeing a company like Google come gives a certain amount of reassurance and makes it a lot easier for commissioners to beleive us public interest folks when we say “yes, open the white spaces to unlicensed and it will get used.”

But for Om Malik over at Giga Om and other well informed press folks to make their judgments about the white spaces based on Google’s involvement or non-involvement is as ridiculous as the worshippers of the Gods of the Marketplace deciding based on ideology without regard to actual evidence. Google’s financial interests are obvious, their interest here long standing, and their latest outreach effort no more or less noxious than those of any other company. In this case, they have the advantage of showcasing organizations that came on the scene (like MAP and NAF) long before they did.

As I have said before and will say many times again, citizen’s movements must be citizen driven. That is their strength, and why so many pundits and lobbyists who mistake lazy cynicism for experience and wisdom seem utterly incapable of understanding. But as long we believe it we will continue to change the world — and reporters like Malik will continue to be smugly wrong about what to expect.

Stay tuned . . . .

Off to Big Tent In Denver Next Week.

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For anyone who cares, I will be in Denver next week, but not for the Democratic National Convention (although I wouldn’t say no if someone wanted to slip me a pass — hint, hint). I will be attending the Big Tent event for bloggers, progressives, and anyone else who cares to wonder over and see what the changing face of online politics looks like. The event is running in parallel with the Democratic Convention, with significant overlap, although not actually part of it and far enough away geographically to be separate and distinct. I shall leave it to the reader to draw his or her own meaning from this.

Still, the hope is that the Big Tent event will attract significant cross over from the convention. On Tuesday, in conjunction with Common Cause Colorado, there will be a symposium on media issues and all that policy stuff I do over in my day job at Media Access Project. If you’re there, you can catch me speaking on media ownership and its impact on diversity in the afternoon, and/or my colleague at MAP, Parul Desai, talking on network neutrality. In the morning there will be a bunch of other speakers, including FCC Commissioner Jonathon Adelstein, so it should be fun.

Anyway, if you see me out there, feel free to come up and say hi.

Stay tuned . . . .

The McCain Tech Policy Part II: Why McCain Can’t Fix The “Mercedes Divide?”

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O.K., jokes aside about the lameness and lateness of McCain’s tech policy and associated privacy policy. How does this all really stack up as a substantive plan?

Two quotes from former FCC Chair and McCain tech adviser Michael Powell nicely illustrate the fundamental thrust of the plan. Not so coincidentally, both come from Powell’s first press conference as Chair of the FCC.

Quote 1.

“I don’t believe deregulation is like the dessert that you serve after people have fed on their vegetables, like a reward for competition,” Powell said. “I believe deregulation is instead a critical ingredient to facilitating competition, not something to be handed out after there is a substantial number of players and competitors in the market.”

Quote 2:

“I think the term [digital divide] sometimes is dangerous in the sense that it suggests that the minute a new and innovative technology is introduced in the market, there is a divide unless it is equitably distributed among every part of the society, and that is just an unreal understanding of an American capitalistic system. I think there is a Mercedes divide. I would like to have one, but I can’t afford one. I’m not meaning to be completely flip about this. I think it’s an important social issue, but it shouldn’t be used to justify the notion of, essentially, the socialization of deployment of the infrastructure.”

Once you accept the “Mercedes Divide” frame, you have run out of tools to deal with the issues because, by definition, whatever the market provides is what result you should get. McCain, obviously, does not wish to accept this rather obvious consequence, and therefore falls back on the usual platitudes and reliance on the gods of the marketplace, the competition fairy, and the delightful myth that — Adam Smith to the contrary — getting a collection of companies with similar interests together to regulate themselves will somehow work.

Surprisingly, as David Isenberg noted on his blog, what is amazing is that the plan leaves out the few bright stars of Michael Powell’s tenure at the FCC — notably Powell’s commitment to spectrum reform. While I certainly opposed Powell’s efforts to make spectrum licenses a species of property I enthusiastically applauded his equal willingness to engage seriously on opening more spectrum for non-exclusive unlicensed use (you can see a very old primer of mine from the dawn of the spectrum reform debates here). Perhaps spectrum reform proved too complicated or controversial an issue for McCain to address, even buried at the bottom of a tech policy.

But having ruled out open spectrum, McCain has left himself very few tools to actually provide all the benefits he promises. Rather like the current administration, which will tell you that Bush achieved his 2004 promise of universal broadband by 2007 so shut the heck up about those stupid international rankings, McCain’s tech platform will work swimmingly for true believers unconcerned with the impact on actual reality. Below, I draw out the substantive problems with the McCain tech & privacy plans in greater detail, and explain why the Obama plan actually looks like it would make real improvements in people’s lives because Obama recognizes that there is a real difference between “the government needs to build roads rather than wait for car companies to build them” and mandating that “everyone must have a Mercedes.”

More below . . . .

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A Reminder Why the PK Petition On Mobile Texting Matters (lest you think I only pick on cable operators).

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Today’s NYT has this op ed on Obama’s use of text messaging to announce his VP pick. It provides a nice reminder about the importance of the pending Petition by PK and others on text messaging. Filed after Verizon denied NARAL a short code but reversed itself within 24 hours the mobile texting petition often gets bundled with the Comcast complaint as if they were essentially two examples of the same thing. They aren’t. The Comcast complaint asked the FCC to follow through on its previous commitment to prevent broadband providers from blocking or degrading content or applications. For all the (well deserved) hoopla around the decision, it was at heart, as Commissioner Tate described, “a normal enforcement proceeding, regarding a particular complaint within the confines of the specific circumstances presented.”

The Petition for Declaratory Ruling on mobile text messaging and short codes is not a complaint (although it is an adjudication). It does not seek to punish Verizon as a bad actor, and it only refers to the NARAL incident as an illustration of why the Commission needs to act. Rather, we ask the Commission to decide — for the first time — whether mobile text messaging is a Title II telecommunications service, like the underlying phone number and voice service. If the Commission decides that it is a actually a Title I enhanced service (like the internet access you can buy separately), we ask the FCC to impose rules that would prevent wireless carriers from denying a short code to someone or from messing with anyone’s text messaging.

Not that Verizon or any other provider would be so foolish as to deny the Obama or McCain campaigns short codes or block their text messages. I’m not even worried about independent candidates like Barr and Nader. No, I’m worried about us ordinary schlubs, or even unpopular folks who can’t count on getting a front page story on the NYT if something happens but still deserve the right to organize and spread their message to willing listeners.

More below . . . .

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Kevin Martin, champion of Net Neutrality?

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According to Freepress.net, Martin joins a “Bipartisan FCC Majority” to punish Comcast for its peer-to-peer blocking funny business, already discussed here lots of times.

Like everybody else, I’ll await the in depth analysis sure to come from Harold Feld.

But assuming that this is what it appears to be, I hereby congratulate Chairman Martin. As I reported here, I had a chance to talk to him at the reception following the FCC hearing in Boston. And I found him sympathetic to the point of view that net neutrality was about more than consumer rights, it was about preserving the Internet as an engine of democracy. I wouldn’t be surprised if that argument figured in the deliberations on this ruling. In any event, I’m cautiously optimistic.

Comcast Not On Notice? They Were Told Point Blank!

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It is a rather trite cliche that those who do not learn from history are doomed to repeat it. But in law, where concepts such as precedent and law matter a great deal, there’s an even bigger problem: Those who do not learn from history are likely to miss the obvious.

As we all know, Comcast has invested a lot of time in arguing that they lacked notice that the FCC would enforce the principles of the policy statement via a complaint against them. “How could we possibly have known?” Comcast has asked, winning sympathetic nods from a variety of folks. “Policy statements aren’t enforceable! How can you possibly punish us for something we didn’t know we might be held accountable for, all our public statements to the contrary?”

Well, let us suppose that Comcast was told two years ago today that the FCC would entertain complaints if Comcast blocked or degraded traffic. Would that make a difference? If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” I would think we could all agree that this constituted “notice,” yes? Perhaps not notice of whether or not the behavior at issue constituted blocking or degrading — that is, after all, what the Commission determines in a complaint. But certainly if the FCC had told Comcast directly, to its face, no ifs and or buts, the above quoted line, I would hope we could all agree that Comcast had received reasonable notice that parties could bring complaints to the Commission, asking the Commission to determine whether the parties had behaved in an inappropriate manner.

Because — Surprise! — exactly two years ago today, that is exactly what the FCC told Comcast.

More below . . . .

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Wireless Mic Follow Up: Turns Out Public Safety Did Get There First

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One may logically ask, if I am right about the wireless microphones being such a big problem for public safety, why haven’t the public safety folks complained to the FCC about this?

Answer: turns out they have. But, the public safety folks being quiet and unassuming, failed to make themselves heard.

Allow me to change that. The National Public Safety Telecommunications Council, a federation of public safety associations, sent a letter to Chairman Martin asking that the FCC address the problem of wireless microphones back on June 30, 2008. i.e., about two weeks before I filed. While I wish I could claim that it was the NPSTC letter that inspired me, I had no idea it was out there until today. My conversations with the public safety guys were all informal and off the record. Still, as always when folks remind me I’m not an engineer (or an economist, or technologist, or any of the other topics on which I chose to share my humble layperson’s opinion), I am rather pleased to find a bunch of actual engineers that agree with me.

Mind you, the NPSTC letter asks the FCC to go a heck of a lot further than I have. NPSTC wants wireless microphones kicked out of the entire 700 MHz band. I, OTOH, think lots of folks can productively use the broadcast white spaces. Still, I do feel compelled to point out that wireless microphones do not have nearly the level of intelligence/sophistication being discussed for interference avoidance for the white spaces devices at issue in 04-186. Perhaps we should require wireless microphones to rely on sensing as well, or require that they consult an online database for possible new users in the band, or require them to acknowledge some sort of “permissive beacon.” Perhaps public safety entities like NPSTC should administer the database or beacon, and we should require wireless microphone users to pay for these services.

I mean, after all, we wouldn’t want to let these devices run around loose, would we? Think of the terrible interference that might cause. Unless these devices can meet the same rigorous standards that Shure and others seek to impose on unlicensed devices in 04-186, I don’t see how we can ask NPSTC to abide by circumstances that they feel place our public safety at risk.

Stay tuned . . . .

We File Wireless Microphone Complaint: Shure Says Breaking Law Should Be OK If You Sound Good.

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As regular readers will know, among my many wireless fixations are the use of the broadcast white spaces and the 700 MHz auction. So what happens when I get to combine the two together?

Answer: A 50 page complaint and Petition for Rulemaking, another 175 pages of evidence that Shure and other manufacturers have been marketing wireless microphones in violation of FCC rules, then using the victims of this deceptive marketing scam as “human shields” in the white spaces debate, and a possible road map toward solving the potential for massive interference with new public safety and wireless services operating on the returned UHF bands. As a side benefit, it also provides a route to authorization for the hundreds of thousands (if not millions) of illegal wireless microphones, finds a use for that leftover 5 MHZ band in the AWS-2/AWS-3 proceeding (waste not want not), and potentially changes the debate in the white spaces fight by getting the goddamn fact that the overwhelming majority of wireless microphones are (at the moment) used illegally out in the open so people can have a rational discussion about interference protection.

Oh yeah, and it will require the wireless microphone manufacturers to clean up the mess by exchanging the old, unauthorized equipment for new equipment that doesn’t work on Channels 52-69. I love a plan that only punishes the guilty rather than letting the wireless microphone guys reap yet another windfall by requiring the unauthorized users to pay for their own equipment replacement.

And what was Shure’s response to the complaint? According to the Associated Press, Shure did not deny breaking the law. Instead, they said: “today’s uses of wireless microphones provide a valuable and irreplaceable public good, regardless of the licensing scheme.”

Or, in other words, “yeah, we broke the law — but it doesn’t matter because we will use Broadway and churches as human shields if you try to go after us” (insert international gesture of respect performed with raised middle finger at FCC).

You can see the press release here, and get copies of our complaint/Petition here. (Links to the Exhibits are on the press page.) You can see a bit more analysis from yr hmbl obdn’t below….

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