Tag: fcc

'Scuse Me Whilst I Pause to Savor the Irony — Wall St. J Writer Blames Kevin Martin For Slow Broadband

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So Wall St. Journal Technology Review Walt Mossberg blames Kevin Martin for our ridiculous slow broadband speed.

Here’s the dialog:

Mossberg: “You are the head of the FCC. How have you allowed this to happen? I AM DEAD SERIOUS. HOW HAVE YOU ALLOWED THIS TO HAPPEN?

Martin: “I am not sure I am solely responsible. I am also not sure the charts capture the whole story. I think you do have to put in the context some of the demographics of the United States and some of the countries we are competing against.

Mossberg: Does that explain why we pay $12.50 per megabit in the United States as opposed to $3.09 in Japan and $3.70 in France? Why are we paying four times as much?

Martin: Yes it does. Because it costs a lot more to build out in more rural areas and people who live further apart… We have a history of averaging some of the cost to make it affordable for people in Montana.

I find this ironic on two levels. First, I have a memory that goes back far enough to remember the Wall St. Journal editorials absolutely crucifying Kevin Martin when, as a Commissioner, he tried to stop Michael Powell’s full-bore deregulation of broadband and the local telephone loop because only a completely laissez faire non-regulatoy approach could get industry to invest and do its job. Ditto the editorials on why C Block open device conditions because any sort of government mandate is bad bad bad BAD and can never, ever, ever be good.

Yes, I know that the Wall St. J. prides itself on having an ironclad fire wall between the reporting function and that editorial function. So I am not saying that Mossberg is being inconsistent or hypocritical in any way. But it is still ironic that reporters dismayed at the current state of affairs blame Kevin Martin for failure to act, while the folks on the Editorial Page routinely pillory Martin for even thinking the word “regulation” without puting a “de” in front.

Second, it’s ironic because, while I will be the first to say that Martin has not done nearly enough for my money (let’s start with not adopting mandatory wholesale as we at PISC recommended for half the auctioned 700 MHz spectrum last year, and the painfully slow pace of Universal Service Fund Reform), he has done more to foster the development of better broadband at faster speeds than any other member of the Bush Administration. Unlike, say, former NTIA Administrator John Kneuer, who explained last year how everything in American broadband was just ducky and we just need to stay the course, Martin has acknowledged that we need to do better and have higher expectations (although, again, not going nearly far enough IMO). This includes not merely making a show of reforming the FCC’s impossibly lame broadband study and report, but actually making some substantive improvements.

Mind you, I’m not defending Kevin Martin’s record on broadband here. And I will readily acknowledge that he’s been a good soldier for the Bush Administration on a number of key issues (I do not hold my breath to learn if AT&T and Verizon broke the law when they cooperated with NSA on domestic spying). But I cannot let the double irony of a Wall St. J. columnist blaming Kevin Martin for our wretched national broadband situation go unpassed, when the Wall St. J. editorial board has been in the vangaurd of pillorying Kevn Martin any time he actually tries to do something.

Again, I know Wall St. J. takes great pride in keeping its editorial board and reporting functions separate, but it’s still delightful. At least, for those of us in the progressive movement who have always been utterly consistent in blaming Kevin Martin and the rest of the Bush Administration for not nearly going far enough. That’s why next week at National Conference on Media Reform, the Martin-bashing won’t be ironic. It will be heartfelt, sincere, consistent, and deeply passionate Martin bashing. Well, actually it will be ironic then, too; but for entirely different reasons I will post about next week.

But for the Wall St. J. and its fellow worshipers of the Gods of the Marketplace, I can only smile and say “what, you don’t like the world the Gods of the Marketplace have made? Then I guess you better pray harder — or perhaps consider a different faith.”

Stay tuned . . . .

Leased Access Reform Hits A Major Speed Bump.

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I had hoped to be able to tell all my friends at the National Conference on Media Reform in the beginning of June about the fantastic opportunity to put independent progressive programming, minority-oriented programming, and local programming on cable when the new rates and improved rules for cable leased access became effective June 1. Unfortunately, due to a decision by the Federal Court of Appeals for the Sixth Circuit granting the cable request for a stay pending resolution of the challenges to the rules, that won’t happen. While not a total loss (the Sixth Circuit rejected the NCTA’s motion to transfer the case to the D.C. Circuit) and not preventing programmers from trying to take advantage of leased access now, this is a serious bummer for a lot of reasons — not the least of which is the anticipated crowing by the cable guys (ah well, we all endure our share of professional hazards).

But mostly, I am disappointed that the cable operators will continue to withold the real rates under the new formula. As part of the stay request to the FCC (and subsequently to the 6th Cir.), the cable operators had submitted affidavits claiming that under the leased access rate formula adopted by the Commission, the new rate would be FREE!!! and they would have to drop C-Span and any other programming you like as a result. Since the cable operators always claim that the impact of any regulation is that they will need to charge higher rates, drop C-Span, stop deploying broadband, etc., etc., I am not terribly inclined to believe them this time and had looked forward to either their releasing real rates or putting programmers on for free. But since cable operators uniformly refuse to make the new rates available before the new rules go into effect (another reason I disbelieve the “the rate will be zero” claim), and because they control all the information relevant to the rate calculation, I can’t actually prove they are blowing smoke. Now it looks like we will have to win the court case (which will likely take a year or more) before we find out the real leased access rates.

Mind you, leased access had already hit a few roadblocks, owing to the inexplicable delay in sending the rules to the Office of Management and Budget (OMB). Although the rules were approved in November ’07, released on February 1, 2008, and published in Fed Reg on February 28, the order was not sent to OMB for the mandatory review under the Paperwork Reduction Act until April 28. I might almost think the cable folks in the Bureau were less than enthusiastic about supporting leased access reform. OTOH, since it also took the broadcast enhanced disclosure rules a a few months to get to OMB, it may just be the natural slowness of the process. After all, by federal law, the carrier pigeons used to take the text in little scraps from FCC across town to OMB can fly no more than two flights a day.

But to return to the critical point, what does the court ruling mean for leased access reform and the hope that local programmers, progressive programmers, minority programmers and others could have an effective means of routing around the cable stranglehold on programming?

See below . . . .

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D.C. Cir. to Comcast: “Making You Obey The Law Is Not A 'Vendetta.'”

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When an industry challenging agency action loses the sympathy of the D.C. Cir., it is a good sign that someone overreached just a tad. In apparent preparation for the The Big Cable Show in New Orleans this week, the D.C. Circuit issued this opinion denying Comcast’s insistence that it deserves a waiver of the FCC’s cable set-top box interoperability rules.

The case actually has an interesting precedential aspect I shall discuss below, but the primary reason I am noting it is because this is the first in a series of cases in which Comcast and the rest of the cable industry have actually pleaded that they should be excused from the law because enforcement is all part of an evil vendetta by Kevin Martin against the cable industry. Really. Because while people may accuse Hilary Clinton of having a “sense of entitlement” about the Democratic Nomination, she has the humility of a saint with zero self-esteem compared with the ravening sense of entitlement of the cable industry.

Mind you, the cable industry won won so much for so long at the FCC that a Chairman willing to enforce the law against the cable industry, with 2 other Commissioners willing to vote with him, is quite the shock to the system. And of course, when you have a paid chorus of wholly owned subsidiaries in Congress and captive industry press (combined, I’m sad to say, with a boatload of easily manipulated public interest groups that should know better but hate Kevin Martin for other reasons), it becomes easy to believe your own press releases. Which is why not merely the cable industry, but their allies as well, have started to put some genuinely stupid and insulting things in their filings that make you shake your head and go “whoa! I can’t believe they actually said that!”

And neither could the D.C. Cir. Not only did the panel hearing the case dryly reprimand the cable industry a few times, but they gave Comcast ‘n friends a very thorough bitchslap in the opinion.

More fun details, and the actual useful legal point, below . . . .

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Republicans Begin To Understand the Poitics of Fear (That They Won't Be Reelected): Senate Rejects Relaxation of Ownership Rules

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One of the things the Republicans did when they controlled Congress was to set up a process by which Congress could directly overrule an administrative agency. Called a “Resolution of Disapproval,” it must be passed by both houses of Congress and signed by the President like any other law. But the effect is to wipe away the agency action and restore the status quo to life before the agency action.

In 2003, when the FCC first relaxed the media ownership rules into practical non-existence, Congress was still firmly in Republican control. Mind you, many Republicans also disliked the FCC decision and wanted to see it overruled. Some disliked eliminating ownership limits because they understood that if a few companies control the news and therefore control public opinion, the own you forever. Others only hated the FCC relaxation of ownership rules because their constituents absolutely hated the relaxation of ownership rules and made that clear in no uncertain terms. But the Republican Congressional leadership stood staunchly with the Bush Administration (which backed the FCC’s decision to deregulate) and they prevented it from ever coming to a vote on the floor of the House.

Flash forward to now. Back in December, the FCC voted to relax the newspaper-broadcast cross ownership limit. Senator Dorgan introduced a Resolution of Disapproval back in March. Despite a strongly worded veto threat by the White House, the Senate passed the resolution last night in a near unanimous vote. I say “near unanimous” because it was a voice vote, which means that it is impossible to tell the exact number or who voted how, but that it must have had overwhelming support since no one asked for a roll call vote.

After years of exploiting the politics of fear, the Republicans are learning a politics of fear all their own. It does not matter that this was a Republican FCC, or that the Bush White House is threatening a veto. After two losses within two weeks in “safe” southern districts, the fabled Republican Party discipline is disolving into a mad scramble for the lifeboats. With the public in an ugly mood and conservatives now once again on the receiving end of “media bias,” no one wants to go on record proudly standing by “our beloved Commander and Chief” to defend Rupert Murdoch’s right to own as many newspaper/television combinations as he can grab.

It’s not over yet, of course. Not by a long shot. While I would certainly hope and expect that Pelosi will schedule a vote in the House as soon as possible, I also expect Bush will veto the bill. That would require the House and Senate to vote for an overide, which may prove a harder thing to do — especially once the President and his big media buddies start twisting arms and calling in favors. But while we can’t afford to grow overconfident or assume this fight is won, we can certainly feel both that the momentum is on our side and that we have accomplished something really huge here.

And, in my nasty neurons and snarky receptors, I am savoring the new “Republican politics of fear.”

Stay tuned . . . . .

D Block Rides Again! And the NPRM Is Already Released!

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If I weren’t generally pleased with my quick flip through of the Commission’s Latest Notice of Proposed Rulemaking on D Block, I would declare it a true sign of the coming of the Apocalypse. Amidst the Mighty Earthquakes, the Great Whirlwinds, and other terrible signs and wonders, THE FCC RELEASED A NOTICE OF PROPOSED RULEMAKING ON THE SAME DAY AS THE OPEN MEETING!!!! Tremble all ye telecom whores Babylon, for the Day of Judgment is surely upon us!

I must also take the opportunity to give a huge THANK YOU to Commissioner Copps and whoever else got us a full 30 days for comment and 15 days for reply. Because given how impossible it will be to met these deadlines, I shudder to think what would have happened on an “accelerated” schedule.

A bit more below . . . .

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And People Ask Me Why I Don't “Trust the Market . . . .”

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From recent headlines:
Now that the FCC hearing in Standford is over, Comcast had dumped the idea of a consumer “bill of rights” for consumers. Instead, apparently picking up on Commissioner McDowell’s confusion over ICANN and how it works, Comcast has announced it is joing the Distributed Computing Industry Association (DCIA). While purportedly eager to include us regular folks in the dialog, consumer interests will not be represented in the initial discussions.

Comcast also is looking at bandiwdth caps, but that’s in addition to “managing” p2p, not instead of managing p2p.

Meanwhile, Earthlink is apparently walking away from Wireless Philly, and may simply shut the system off unless the city buys it out.

And folks ask me why I don’t “trust the market” when I am skeptical that big companies will stick by their commitments….

Stay tuned . . . .

Worsht Ex Parte Ever: I Gloat Over Latest D.C. Cir. Case on a Procedural Point

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One of the constant irritants for me and others trying to follow what happens at the FCC is the problem of “the too brief ex parte.” Under the Commission’s rules (47 C.F.R. 1.1200, et seq), when a party meets with FCC staff on an open proceeding, the party is supposed to submit into the record a written statement providing a summary of the conversation. This is called a “notice of oral ex parte presentation” in FCC-speak, but we usually shorten this to just ex parte. By rule, the ex parte should provide a reasonable explanation of what took place so that a reader can get a sense of the argument made (although you can refer back to a previous filing to avoid repetition). In practice, however, you usually get nonsense like this piece of garbage from Alltel which wins the Comic Book Guy Award for “Worsht Ex Parte Ever.”

So it was with a considerable amount of schadenfreude that I saw the D.C. Circuit whomp Sprint/Nextel for producing crappy ex parte‘s that failed to provide a record of their no doubt numerous detailed conversations with Commission staff. This failure to leave a record resulted in dismissal of Sprint’s case and may cost it many billions of dollars.

More gloating below . . . .

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Paging Hospital Techies: You Have Bigger Worries Than White Spaces

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CNET has this story about how “Hospital Techies” (notably medical monitor manufacturer GE) are worried that white spaces devices will mess up their medical systems.

Bluntly, “hospital techies” have bigger problems. As the CNET article observes, but lightly passes over, some unknown number of hospitals are using legacy medical monitoring equipment that will stop working after the digital transition. So while the odds of white spaces devices (WSDs) interfering with actual medical equipment on the approved set aside, Channel 37, approaches zero, and WSD interference with legacy equipment is equally unlikely, we may face a total meltdown in poor hospitals of medical monitoring equipment.

Rather than waste time on white spaces, I would say manufacturers like GE Healthcare need to start working with the FCC (and Congress) to engage in a massive education and outreach effort equal to what the FCC has done with the NAB and retailers to educate the public. That means stop selling any legacy equipment, require manufacturers to notify customers that have legacy equipment that it may stop working, and find out how many hospitals are likely to lose medical monitoring equipment after the DTV transition happens. A little funding from Congress to help poor hospitals that can’t afford to upgrade wouldn’t hurt either.

But worrying about white spaces is like worrying about whether a candle will blow over when a brush fire is bearing down you. Unless folks wake up to the danger, we may get seriously burned.

More analysis below . . .

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It's Nice When the FCC Listens Part II — The Cyren Call Investigation Is Out.

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When it rains, it positively pours. The FCC just released its Inspector General Report on whether Cyren Call screwed up the D Block. As readers may recall, I and my friends from the Public Interest Spectrum Coalition (PISC) sent a letter to the FCC as soon as the auction ended, asking the FCC to investigate the allegations over whether Cyren Call scared away D Block bidders. To his credit, Martin referred our letter to the FCC’s inspector general. The IG did a quick and thorough job, which you can read here. I shall add that it always gives one pause to find oneself as a subject heading in an IG report.

Generally, I’m satisfied with the report, which confirms my own suppositions after the anticollusion rules lifted and Cyren Call started yapping. Critically:

1) The meetings took place;

2) They were understood by all participants to be business negotiations, not “take it or leave it” demands;

3) The lease payment itself was not a deal breaker, but the potential bidders interviewed said that so many questions about potential financial liability and business model remained — aggravated in part by the uncertain role of Cyren Call — that they opted to stay away (or, as the IG concludes “this was just one drop in many different buckets”);

4) No FCC rules were broken and no one acted in bad faith, therefore there is no need for a referral for any criminal investigation.

Personal reflections below . . . .

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It's Always Nice When The FCC Listens

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A few months ago, fellow Wetmachiner Greg Rose and I wrote a wrote a white paper on how to improve the FCC’s processes, make FCC rulemakings and proceedings more accessible to the public, and generally increase the legitimacy and reliability of FCC decision making. As one relatively easy change, we suggested the FCC post the agenda for open meetings far enough in advance that people can come in and make their last pitches to the agency before “Sunshine” (the period when communications stop under the “Government In the Sunshine Act”) kick in. As we explained, providing the agenda at the last second often advantages insiders who hear when an item is likely to go on the agenda, who therefore rush in while those who don’t know the item is going on Sunshine will lose their last chance to rebut arguments or press their case.

So it was pleasant to see Chairman Martin announce that from now on he will publish the likely agenda 3 weeks in advance. That should be a big help to everyone — including the other Commissioners, who will not suddenly find themselves with a week to digest an agenda of a dozen items.

Yes, it is a relatively minor change, but it is important in two ways. First, practical details really do matter. That sometimes gets lost in the fight over specific substantive issues. Second, it demonstrates a willingness by Martin to listen to criticism and take action — at least on the low hanging fruit. Such things deserve notice and suitable (although not overly elaborate) praise. Remember, public policy is made by human beings, and you get what you reward.

Stay tuned . . . .