Tales of the Sausage Factory

The 700 MHz Dramedy Continues

Ya know, I had real hopes that, barring a Petition for Reconsideration or two, I was pretty much done with the 700 MHz auction. Sure, Verizon filed a lawsuit with the DC Circuit, but at least we could sit back and stop worrying about the FCC stuff. And besides, the lawsuit didn’t really have much of a chance anyway. So, after a grueling 6 months or so, I thought I could finally relax and turn to something new, like kicking the bejeezus out of the cable monopoly.

Hah.

As recent reports indicate, Verizon has apparently pressed the FCC to “clarify” the C Block conditions. I say “apparently” because Verizon has not actually filed a request for any sort of clarification, reconsideration, or declaratory ruling. Indeed, to my considerable annoyance, it took a modest reprimand from the Wireless Bureau and Martin’s staff for Verizon to actually put something in the record vaguely resembling a description of what Verizon’s most senior lobbyists actually discussed with the Chairman and his staff. Verizon, meanwhile, vigorously denies they ever asked for reconsideration (and, separately, that it finds the accusation that it violated the ex parte shocking and deeply offensive).

In any event, it appears the issue is whether or not Verizon (if it won the C Block licenses) could continue its practice of asking manufacturers to strip out or limit features or applications on devices that run on the C Block. Verizon argues that consumers love subsidized handsets and letting the cell phone operator make all the tough decisions (like what applications can run on the device), and it would therefore be cruel to deny the C Block licensee the right to offer such fantastic products and deals — as long as the C Block licensee will hook up any third party device that meets the technical standards.

To Martin’s credit, he reached out to the Public Interest Spectrum Coalition (PISC) and asked our opinion on whether the C Block licensee should be able to sell “crippled” devices as long as it will also connect any third party device to the network. Martin was apparently sufficiently impressed by my wisdom that he then tried to issue a clarification that Harold Feld is right and Verizon is wrong. The Democrats promptly moved to block, because they suspected a trap, since the idea that Martin would side with me over Verizon is apparently laughable (I have no doubt the Democrats mean that in a nice way and that it does not reflect on the quality of my wisdom). Of course, I have no idea what the proposed clarification actually said, since it is illegal to show me the actual predicisional text. But it is not illegal for Martin to say that he agreed with me or for the Dems to say that’s not how they read the proposed clarification. Remember, ambiguity is the essence of comedy.

In any event, as in any good dramedy, further hijinks naturally ensue from this potent combination of distrust and lack of information. Rumors of this “clarification” prompted Verizon’s arch-nemesis, supporter of wholesale access, and potential rival bidder Frontline to challenge Verizon’s efforts to get the rules changed. This triggered a response from Verizon that they hadn’t asked for a rules change, and that furthermore, on reconsideration, the FCC should issue a declaratory ruling that “Frontline is ugly and their VCs dress them funny.” Meanwhile, now with a full posse of PISC buddies, I went back to the FCC to explain that while I am always flattered to have the FCC declare my interpretation of its rules to be the law of the land (and encourage them to do this on a more regular basis), we at PISC think the Order is perfectly clear and that if anyone wants it clarified they should have to formally file a motion and ask.

One might logically ask why, if Verizon wants the Order changed or clarified, it doesn’t just file a motion and ask. That would be a problem for Verizon, however, because it cannot simultaneously file a Recon Petition under 47 USC 405 and a Petition for Review by a federal appellate court under 47 USC 402. There are ways to try to get around this, but this statutory conflict would explain why Verizon has danced around this issue and pretended it is merely a continuation of its previous arguments properly filed in this docket. Assuming, of course, that they actually want a clarification, which they claim they don’t.

So, if Verizon hasn’t put in an explicit request, why does Martin feel a need to act? Does Verizon really have a leg to stand on, or is this just an effort to refight the same battle? And what about the tech companies? Why don’t we want the FCC to proclaim that I am right on my interpretation of the Order? And will the Red Sox finally face the Cubs in a World Series “curse off?”

O.K., I have no clue on the last one. But as for the rest of these questions (and perhaps a bit more), see below….

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Tales of the Sausage Factory

Assessing the 700 MHz Order Part V: The “Property School” Takes It On The Chin

In this final installment assessing the FCC’s Order on the 700 MHz auction approved at the July 31 Commission meeting, I want to conclude by placing this in the context of the broader spectrum reform debate, notably the Property v.Commons debate.

Short answer, the Property School really took it on the chin here. Not like this was a big victory for the “commons” school either, however, although the C Block conditions helped a smidgen there by reasserted the Commission’s right to regulate and the First Amendment value of open platforms. Actually, I’m talking about the invocation of Section 316 to move a licensee that was making it very difficult for the FCC to resolve the cross-border interference with Canada caused by the new band plan. In keeping with the extremely pragmatic nature of the Martin FCC, the Commission resolved a roadblock by calling upon its statutory powers and telling a licensee: “Sorry dude, you gotta move for the public good.”

This would be wholly unremarkable if some of us didn’t remember back to a distant time a few years ago when the times, they were a changin’, the ideology battles was ragin’, and partisans on both sides confidently predicted the end of “command and control” regulation. But change for anything with as much inertia as spectrum regulation does not happen overnight or even in a matter of years. It happens gradually, with many maddening ebbs and flows. And, as in the case of the stubborn licensee and shift to avoid interference with Canada, we rediscover why “command and control” is never quite so dead as academics, reformers, and others seem to think.

More below . . . .

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Tales of the Sausage Factory

We take on Chicago and Milwaukee Commercial TV

I had a little unintended hiatus for the last 8 weeks or so. Hopefully, I’ll be back to more regular posting.

To catch up on the news. Media Access Project, where I work, has filed challenges against the licenses of the commercial television stations in Chicago and Milwaukee. You can read the press release here. You can follow the links to the Chicago petition and the Milwaukee Petition. Or you can see my quick analysis about why you should care below.

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Tales of the Sausage Factory

Quick Take on FCC 3650-3700

The FCC decided the 3650-3700 Order today. You can find a link on the FCC Home page.

As is customary, the Order is not yet released, so we have only the press release to go on.

My first take is below. I know a lot of people are going to be upset that it requires licensing, but it is not a “licensed” regime anymore than a truly “unlicensed” regime. We need to keep an open mind and wait for the actual order to come out.

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