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 . . . .

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 . . . .

Back in February, I blogged about Comcast's complaint against Verizon for its “retention marketing” practices. That's Verizon's practice that, when they get a request from another carrier to terminate voice service and transfer the phone number of a customer who is switching from Verizon (a practice called “porting” the number), they make one last run at trying to persuade the customer to stay. At the time, I observed (as I have for well over a year now, since I first made this argument at the at the Federal Trade Commission's 2007 workshop), that if we are going to rely on competition, then we cannot have rules that privilege one side over another. To cancel video service, you have to call the cable operator, who then gets a last chance to pitch you hard to stay and makes it as difficult as possible to terminate service. But to change telephone provider, the cable company can ask the telco provider and the telco provider isn't allowed to try to keep the customer — but must wait to pitch the customer until after the customer has already switched. That's crazy. It needs to be consistent, or it puts the telcos at a serious disadvantage against the cable cos.

Well, back in April, the Enforcement Bureau issued a recommended decision that adopts this same argument. (I've been a shade busy, or would have blogged on this earlier.) It strongly recommends that the Commission commence a notice of proposed rulemaking designed to harmonize the rules for switching video and voice. No surprise, as this also tracks a Verizon Petition for Declaratory Ruling — as noted by the Bureau in a footnote.

Needless to say, I wholeheartedly approve of such harmonization, having supported this approach for well over a year. So why does the recommendation make me uneasy?

Because of the legal reasoning around the facts of the instant complaint. The Bureau recommends a finding of no violation because number porting is not a Title II telecom service and cable providers offering voice over IP (VOIP) are not providing Title II services. Which means that the FCC can flit back and forth between Title I and Title II at will, depending on its policy needs of the moment. It also means that Title II telecommunications service has now been reduced to only the voice component of plain old telephone service. And even critical elements of POTS, like managing the phone number systems, no longer count as telecommunication services under Title II.

I'm even more queasy about this because it is probably right under the enormous deference shown to FCC definitional hair splitting thanks to the combination of the Brand X decision and the D.C. Circuit's decision on CALEA in ACE v. FCC. Well, Scalia warned the Brand X majority, but they didn't listen. And Michael Powell, by trying to put broadband services beyond the reach of FCC regulation, ended up enormously expanding the power of the FCC to regulate services on a whim.

More on what I'm talking about and what this means for the future (if adopted by the Commission) below . . . [Read More!]

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 . . . . [Read More!]