Tag: fcc

FISA Reflections: FISA and The FCC

, ,

Well, the foul FISA Amendments Act is signed. I shall have more refections as time permits. But I did have one thought here. FISA and the FCC.

The Title II of the FISA Amendment Act of 2008, the “Protection for Electronic Communications Service Providers,” provides for protection from any “covered civil law suit.” As John Dean first observed, the bill does not refer to criminal immunity. Personally, however, I think that is a bit of a red herring, although I am curious as to whether the pardon power really runs to corporations and other artificial person that exist solely as a function of law. But lets assume it does. So let us assume that on his last day, Bush pardons anyone and everyone involved in the whole sorry affair. Where does that leave us?

The Federal Communications Commission.

The FCC is not a “court” of the United State as defined by the act. A complaint brought to the FCC under the Customer Premise Network Information (CPNI) rules, or even the broader provisions of Section 202 “just and reasonable practices,” does not fall within the purview of a “covered civil action.” In the event that a pardon is considered to cover possible administrative sanction, I would observe that a Petition for Declaratory Ruling that the conduct disclosed violated the CPNI rules is not a criminal action or civil liability, but would still entitle the Commission under its broad powers pursuant to Section 4(i) and Section 403 to investigate. Indeed, under Section 403, the Commission is free to conduct an investigation into the matter on its own motion — if it so desires. The Commission is not limited by the Article III “cases or controversies” requirement. It can investigate anything pertinent to its regulation of all communications by wire or radio, particularly when related to administration of any provision of the Act.

The upside is that, short of a statute specifically prohibiting the FCC from investigating anything related to the domestic spying program, it is damn hard to take this broad investigative authority away. As noted above, even the absence of any criminal or civil liability cannot divest the FCC of its authority to investigate communications carriers — particularly those regulated as common carriers under Title II. Given that the Chair of the FCC cannot be removed by the President, and I would need to check about the applicability of an executive order to the FCC, nothing short of a direct Act of Congress again could deprive the FCC of its ability to investigate. (I imagine we will need to watch the appropriations bills very carefully to see if some clever person sneaks it in under the radar.)

The downside, of course, is that this lies entirely within the discretion of the agency. Even a filed complaint or Petition for Declaratory ruling cannot compel the agency to action.

So we shall just have to see what happens after the election. If we have an FCC interested in letting the American people know how their government spied on them, what actual benefit accrued, if any, and what the FCC might do under existing law to keep that from happening again in the future (all, of course, consistent with national security, blah, blah), we can at least find out what went on and shame these companies into being more careful the next time around. OTOH, if we have an FCC that believes that “national security” means giving the telcos a free ride if the Administration asks nicely, then we can’t find out jack.

Stay tuned . . . .

I Suggest Giving Comcast What It Asks For . . . . Heh, Heh, Heh . . . .

, , , , , , , , ,

As the FCC’s examination into our complaint against Comcast winds down, with what looks like a win for us (although with an opponent like Comcast, I am not going to celebrate a win until after the order is voted), Comcast has increased its efforts to woo McDowell and Tate with a show that “the market” will magically cure all ills by cutting a non-aggression pact with Vonage and a new ex parte filing listing all the wonderful things it has done since the Commission put our complaint out on public notice, which is an obvious sign that no regulatory action is necessary since it is merely coincidence that Comcast (and other broadband providers) have been scrambling with ever more serious urgency as the resolution of the complaint moves closer. Ah Comcast “Change we can believe in until all you stupid regulators go away and we can get back to crushing folks like insects beneath our fiber-coax heel.”

More of interest to us legal (and less credulous) types, Comcast filed a lengthy rebuttal to Marvin Amori’s magnum opus on Commission jursidiction. Marvin’s piece was, of course, a response to the Comcast filing after the Boston Hearing, that asserted the FCC had no authority to sanction Comcast or regulate Comcast’s broadband in the first place. Mind you, Comcast told the a California district court otherwise, and got a stay of the pending class action for blocking bittorrent as a consequence. But the first lesson of law school is that consistency is only a virtue if it serves your client. In any event, this most recent filing (which has not yet shown up online for me to link to) is therefore either the rebuttal to FP’s reply or merely the Nth go round in a “permit but disclose” proceeding.

This is reflected by Comcast’s argument, which largely rehashes previous arguments about the limits of Commission authority and whether Comcast had proper notice it could be subject to a civil complaint and civil sanction. Fair enough. Time now for the FCC to decide and then on to the D.C. Circuit. That’s what process is for, to get the arguments out so we can get a judgment and get on with our lives.

But Comcast does raise one new argument, and an intriguing one at that. And ya know, I think the Commission ought to give it to them. Heh, heh, heh . . .

Why am I chuckling? See below . . . .

Continue reading

An Interesting Tea Leaf on AWS-3/M2Z

, , , , , ,

Well, I keep saying I will do the big posting on AWS-3/M2Z, and keep not getting to it. So I will just drop a short note for the fellow FCC policy junkies who follow this stuff closely. You can find background on the AWS-3/M2Z business here, here, and here.

The FCC extended the filing deadline on the proposal released June 20 to reapportion spectrum between the AWS-2 band and the AWS-3 band (as well as mandatory content filtering). Comments were originally due on a tight deadline (today). This extends things out to a full 30 days for comments and 14 days for reply, so the new dates are July 25 and August 11. That’s less than what the wireless carriers wanted, and it explicitly rejects the request for the FCC to do its own testing. In fact, the whole tenor of the Order provides a rich field for us FCC-ologists to start gazing in tea dregs and rummaging through pigeon entrails.

More below . . .

Continue reading

Broadcast Flag Through The Back Door — Yet Another Episode of “Outsourcing Big Brother.”

, , , , , , , ,

The Motion Picture Association of America has asked the FCC to give it a waiver of something called the “selectable output control” rules for cable boxes. As usual, this apparently minor request for a waiver of an obscure FCC regulation of unknown origin, governing a highly-technical and mind numbingly boring set of rules about cable set-top boxes, hides a bold power grab designed to rip off every owner of a Tivo, VCR, or other perfectly legal recording device available to consumers to engage in the legal practice of recording television programs to watch them later (“time shifting”).

For details on this latest effort to circumvent limits on government by outsourcing the process to an industry cartel, aka “outsourcing Big Brother,” see below . . . .

Continue reading

Sixth Circuit Upholds FCC on LFA Limits: A Bad Decision and A Sad Day for Localism, With Possible Silver Lining for Ancillary Authority and Leased Access.

, , , , , , , , , , ,

The Sixth Circuit has denied the Petitions for Review filed by local franchise authorities (LFAs) and PEG programmers challenging the FCC’s December 2006 Order limiting the ability of LFA’s to negotiate with telco video overbuilders. (You can read a copy of the decision here.)

I am rather disappointed with the decision, as readers might imagine. Not only do I think limiting the authority of LFA’s to protect their residents is a phenomenally bad idea, I think the court takes a very expansive view of FCC authority over LFAs given the legislative history and the statute in question.

On the other hand, the decision potentially provides a substantial boost both the FCC’s ancillary authority and to its leased access reform order, currently pending before the Sixth Circuit. While I find this rather cold and uncertain comfort at the moment, it’s the best I can do in the face of what has become an utter rout for LFAs and PEG programmers. God willing, a future FCC will conduct the inquiry into strengthening PEG programming Commissioners Adelstein and Copps have repeatedly urged.

Some further analysis of the decision and what it might mean below…

Continue reading

Iowa Broadcasters to FCC: “We Do Localism! All It took Was A 500 Year Flood.”

, , , , , ,

One has to admire the utterly ruthless and meticulous way in which broadcasters will move swiftly to exploit absolutely any possible set of circumstances for their regulatory advantage. Case in point, this letter from Sue Toma, Executive Director of the Iowa Broadcaster’s Association to FCC Chairman Kevin Martin, touting their involvement in their communities during the recent terrible flooding.

Mind you, I am glad that Iowa broadcasters can get it together to do their job during a 500 year flood. And it is the job of trade associations to tout the good its members do — even when it is the sort of thing we expect them to do. And certainly Iowa broadcasters should be praised for stepping up to the plate when needed and recognized for playing their part — along with the other community businesses and volunteers from around the country who, unlike the broadccasters, are not under a legal obligation to provide service to the local community. But of course, for the broadcasters, that is not enough. As usual, the broadcasters behave rather like spoiled 6 year old children who expect bribes to do their homework or their chores. Hence inclusion of this little zinger at the end:

I can’t help but note that the Iowa floods come at a time when well meaning but misguided activists are questioning broadcasters’ commitment to localism. My response: Spend time in Iowa, and see first-hand how local and radio and TV stations are serving our communities during the worst flooding in a century. Iowa broadcasters have once again proven their exemplary commitment to the communities that we serve, without the need for more mandates, paperwork and unnecessary regulation.

In other words, that stations actually do their jobs in a once in a century crisis gets them off the hook for the remaining 99 years, 11 months. To which I can only say, giving proper credit and appreciate to stations doing the work they are supposed to do, “get real.” The real test of localism isn’t just how you do in a crisis and that somehow gives you a free pass on the rest of the license period. The real test of localism is how you serve your local community on a daily basis. That broadcasters refuse even to list what programming they show and what they think their viewers get out of the programming choices — whether news, or entertainment, or exposure to local culture and matters of local interest — should raise serious questions about whether broadcasters take their role as stewards of a public license held in trust for the local community seriously.

I recognize that leveraging responses to natural disasters for regulatory goodies is a hallowed tradition among broadcasters, so I’m not offended at the Iowa Broadcaster’s Association rushing to send this letter as soon as their laptops dried out. But because broadcasters get a lot of mileage out of their so called commitment to localism — such as cable must carry, the right to play music without paying performance royalties, and a rule against satellite radio providing local content that might compete — someone needs to call them on this. You can’t get the benefits of being a licensee with a duty to serve your local community without shouldering the responsibilities as well. So just as my son doesn’t get out of doing his chores just because he did his homework — even if he got an A — broadcasters don’t get excused from serving their community every regular day just because they came through during a flood or some other epic crisis. Kudos for doing a good job on this one, but it’s still your job and you’re supposed to do it well.

And, given that nearly 1 million people took the time to tell the FCC during its localism proceeding that they thought local broadcasters were doing a lousy job serving their local community (I make no claims as to Iowa, that’s national), it doesn’t seem out of line for the FCC to require you to actually tell the FCC how your programming serves the local community as required by your license and to make that documentation publicly available, a requirement broadcasters have gone to court to resist.

Finally, I can’t help but note that low power FM stations (that full power broadcasters fight tooth and nail to keep off the air) have likewise done amazing coverage of the flood and heroic service to their local communities — while still managing to produce local content and serve their communities on a regular basis. If they can pull their weight while still more than complying withe the “mandates, paperwork, and unnecessary regulations” that ensure they serve their local communities, I think the rest of the broadcast community in Iowa can do so as well. And ought to.

Stay tuned . . . .

Today on Telecom Mythbusters: FCC Ancillary Authority in Comcast/BitTorrent

, , , , , , , , , ,

Cable gets a lot of mileage out of repeating things over and over until folks believe it’s true. Today on Telecom Mythbusters I’d like to focus on the question of “ancillary” authority and regulating broadband. The cable guys generally circulate two myths about this.

1) Ancillary jurisdiction by the FCC is an exceedingly rare, wacky, way out thing and the fact that net neutrality advocates even want to rely on it shows how way out there and kooky it is.

2) The D.C. Circuit has been busy trimming back ancillary jurisdiction so that it really doesn’t exist anymore. Specifically, the D.C. Cir. 2005 decision in American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005) (and, to a lesser degree, MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002) worked some kind of mojo against the expansive grant of power by the Supreme Court in United States v. Southwest Cable, 392 U.S. 157 (1968) and the Supreme Court’s explicit statement in Brand X so that the FCC cannot regulate broadband access and prohibit Comcast from targeting specific applications such as BiTtorrent under ancillary jurisdiction. A sub-myth of this is “Title I cannot be the source of authority on its own.”

Marvin Ammori, General Counsel of Free Press, has written a stunning tour de force rebutting these arguments. The 100+ page filing masterfully traces the FCC’s authority under Title I and in this particular proceeding. But for those who don’t want to read through the whole thing, I will give my own take below.

I must once again warn readers that this will be a breathtakingly dull review of applicable case law, along with an examination of FCC precedents and does not go to the juicier merits of policy (not that I expct this to stop the Brett-bot from his inevitable comments). If you do not find legal minutia fascinating beyond words, if you do not thrill at the discussion of the subtle differences between a “Telecommunications Service Provider” and a “Common Carrier,” then for God’s sake, turn back now! Lest your brain dissolve into tapioca pudding from the awesome power of legal analysis unleashed.

(and for Brett: Blah blah blah evil blah blah Free Press blah blah MAP blah blah Ginger)

Otherwise, to see both myths BUSTED, read more below….

Continue reading

Rural Carriers File “Skype-Lite,” or “Wireless Carterfone, it's not just for developers and other parasites anymore.”

, , , , , , , , , , ,

Today, the FCC will most likely dismiss the the Skype Petition. I’ve already written why I think this is a phenomenally bad idea and, while I continue to respect Kevin Martin and understand why he is doing this, he is totally wrong here. Once again, those worried about “unintended consequences,” “first do no harm,” etc., etc. fail to appreciate that a refusal to take action and granting permission to carriers to control the sorts of devices, applications and therefore what innovation and what free speech, go on over their networks is as much an action as granting the Skype Petition. There is no evading responsibility or avoiding unforseen consequences.

Which brings me to the Petition for Rulemaking filed by the Rural Carriers Association (RCA) to prevent exclusive deals on equipment, aka “Skype Lite.” Mind you, the rural carriers opposed the Skype Petition as much as any other carrier, arguing that it would be awful for their limited capacity rural networks if they could not control what equipment attached to their networks and what applications ran on that equipment. Nevertheless, they too are unsatisified in a world where market size and raw capitalism dominate. So, without ever once raising the same arguments as Skype or referencing the Commission’s information policy statement, the rural carriers argue for what amounts to the same relief as Skype, only tailored differently. Rather than regulate all carriers to require open networks, they ask the Commission to limit the market power of the major carriers by prohibitting exclusives. Otherwise, they argu, rural America will never know the joy of the iPhone or any other significant innovation — since the major carriers will tie up the most valuable applications and equipment in exclusive deals.

Nor are the rural carriers alone in finding the world according to Coase and Friedman less than they desire. The Commission has before it a good handful of petitions from carriers asking for mandatory roaming reform, access charge reform, and other limits on the ability of the dominant, vertically integrated providers from exercising their market power. Of course, all of these carriers asking for regulatory intervention are simultaneously celebrating the dismissal of the Skype Petition, piously telling Skype and the rest of the non-carrier industry that they are a bunch of parasites and that if they want access to a network they need to get their own licenses and build one.

I do not write to underscore the hypocrisy of these contradictory positions. That would be a waste of bits. Companies make whatever arguments they need to make in order to survive and thrive. No, my warning to the rural carriers and the rest of the Skype-lite crowd is simply one of practicality. You cannot win your request for special regulation while simultaneously singing the praises of the fiercely competitive broadband market and arguing that there is no place for regulation in this great free market success story. By contrast, if you simply admit that the industry now suffers from excessive concentration and the cure for this requires a comprehensive approach, you will find yourselves much more likely to prevail.

Martin indicated that he would dismiss the Skype Petition “without prejudice,” meaning that Skype or others will be free to try again — say, in six months or so when the FCC changes hands. In the mean time, I suggest the rural carriers and the other industry players anxious for regulatory relief — whether in the form of spectrum caps in auctions, mandatory roaming, or access charge reform — rethink their strategy.

Or, to put it another way, “regulation, it’s not just for developers and other parasites any more.”

Stay tuned . . . .

Verizon's “Perfect Storm”: A Reason Why 700 MHz Band's C Block Cleared On the Cheap

, , , , , , , , , ,

Some critics of the 700 MHz Band Auction (Auction 73) attribute the failure of C Block — which consisted of large Regional Economic Grouping (REAG) licenses — to clear at the kinds of premium over the licenses in the AWS-1 auction that the Economic Area (EA) and Cellular Marketing Area (CMA) in the A, B, and E Blocks did to the fact that C Block had wireless Carterfone service rules attached.

However, careful analysis of the dynamics of the auction suggest that interaction of the auction’s combinatorial bidding, eligibility and activity rules, and the way in which minimum acceptable bids were calculated created a “perfect storm” in which Verizon was able to scoop up the two most populous REAGs for nearly half a billion dollars less than bidders were willing to pay earlier in the auction. This had a seriously depressing effect on the price at which C Block cleared and had nothing to do with the wireless Carterfone service rules.

More below…

Continue reading

Why Jonathan Adelstein Totally Rocks!

, , , , , , , , ,

It’s no big deal for a Commissioner of the FCC to go to a major trade show like NAB or the CTIA. It’s not even a surprise when Commissioners or their staff take the time to come to meetings of important constituency groups or proven political powerhouses. But who takes the time to show up to speak to a bunch of geeks and policy hackers from around the world of no particular political or financial importance? I mean, hearing about how folks in Northern India or Serbia or the North Lawndale neighborhood of Chicago are using unlicensed spectrum to massive improve the quality of life of their communities is nice and inspiring and all, but life is busy and time is short.

Which is why Jonathan Adelstein and his wireless advisor, Rene Crittendon, totally rock. Commissioner Adelstein and Crittendon came down yesterday to the Fourth International Summit on Community Wireless going on here in Washington D.C. You can read the gist of Commissioner Adelstein’s remarks here. I should add that I thought Adelstein’s speech as delivered was brilliant. He deftly drew together the important themes of wireless broadband, connecting people, human rights, and the benefits of digital inclusion. (If I can get a link to the speech or the audio, I will post it.)

After the speech, Adelstein stuck around to take questions and talk to folks. All in all, I think he and Renee ended up spending about two hours down here.

I have often lamented that policy makers in Washington rarely manage to get together with real people who are doing things. Even when folks come to town, it is a carefully managed “field trip” designed to maximize the effectiveness of presentation. It’s important, but it’s not the raw, unvarnished and not always polite perspective of scruffy tower-climbers and local community organizers.

No major policy initiatives, no big announcements. Heck, hardly a whisper of press coverage. But it means a lot when an FCC Commissioner and his advisor take two hours out of a busy day to come down and have an open conversation about things that people passionately believe matter.

Stay tuned . . . .