Tales of the Sausage Factory

FCC Issues Excellent Wireless Microphone Order — Perhaps NAB Will Rely Less on Scare Tactics and Celebrity Letters Now.

Time to clear up a little piece of unfinished business for which I and this humble blog can claim some modest responsibility. The FCC finally issued it’s long awaited Order on wireless microphones stemming from this blog post and the subsequent complaint/Petition for Rulemaking by the Public Interest Spectrum Coalition (to which a special shout out to the folks at New America Wireless Future is due, given the fantastic amount of work they did on assembling evidence and helping draft the document).

As one can tell from this FCC press release describing the details, we pretty much got what we wanted — although not entirely and not in the way we expected. But, as I noted in this press statement in my role as Legal Director of Public Knowledge, we’re very happy with how things turned out. Briefly:
(a) all wireless mic users are now granted legal status, this is done pursuant to the FCC’s Part 15 rules for unlicensed rather than the “license by rule” that we suggested, but my only regret about that is I didn’t think of it when we filed.
(b) Everyone using wireless microphones needs to clear out of the 700 MHz band by Jun 12, 2010 — one year after the DTV transition and 15 months after the original date proposed by the FCC. Given how the Broadway people have been telling the FCC for months how they are off the 700 MHz band, this should not be too much of a hardship — especially for those who had no right to be there in the first place.
(c) The FCC will invest a boatload of its own resources, and gin up the FCC 2.0 machinery, to get the word out to folks and help consumers, churches, etc. handle the transition.
(d) The FCC will require that wireless microphones have signs and labels going forward to make sure that people understand the difference between licensed users and unlicensed users.

In addition, the FCC is having a further notice of proposed rulemaking that will:
1) Set the rules for the new Part 15 unlicensed wireless microphones.
2) Will examine whether to expand the class of Part 74 Subpart H eligible licensees to see if they should expand the class to give interference protection to some set of users — which would include who gets to be in the database of licensed services protected from operation of TV white spaces devices.

Yeah, that kicks the can down the road rather than saying flat out “anyone who was using a wireless microphone illegally is not entitled to protection against the TV white spaces devices, which went through the legal process and got approved.” But I can most definitely live with that. For one thing, I am confident that in an evidence-driven FCC which places consumer interests first, as demonstrated by this Order with its unprecedented investment of FCC resources for outreach (which we had not even dreamed of requesting except in the most general way of offering to help), will focus on the real question of whether or not there is interference and if so how to strike the appropriate balance between allowing new technologies and protecting existing users. Hopefully, this will inspire white spaces opponents to focus on engineering rather than trying to use scare tactics and celebrity “star power”.

More below . . .

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Tales of the Sausage Factory

Brief Update on Wireless Microphones: Where Mike Marcus and I Disagree

As Mike Marcus pointed out in the comments on my previous wireless microphone piece and on his blog, he and I disagree on the advisability of allowing prisons to jam cell phone communication.

Let me begin by saying that Mike has both tremendous engineering chops as well as a thorough understanding of the FCC and the politics therein. He worked there for some ungodly amount of time in the Office of Engineering and Technology, and was a critical force in pushing the 1989 rule changes to Part 15 that made the unlicensed revolution possible. His comments are not to be taken lightly here.

Where Mike and I disagree is not so much on the primary data but on how much weight to assign things. This is not uncommon in the messy world of policy, and is why even people generally aligned with one another can disagree strongly on important matters of policy (and why I hate the tendency for people to start calling each other nasty personal names over such disagreements). That’s why it’s important to see where and how we disagree.

In addition to his blog post, Mike also consulted for the state correction facilities on their Petition for Rulemaking (“Prison jamming Petition” or “PJP”). Read through that and his blog post and we come up with the following:

1) We both agree this is a hard engineering problem. Whereas I am more skeptical (based on the folks I’ve talked to) that this can be done in a way that is effective, affordable, and without interference, Mike thinks it is possible for some prison environments. I stress this last because, as the PJP points out, even the most optimistic projection for the current level of technology makes it doubtful this will work in detention facilities in high-density population areas.

2) Which brings us to major point of disagreement #2, how much will this really help and is the trade off worth the risk. Mike readily acknowledges that this is no “magic bullet” that would solve the security problems. The question is whether it does enough to be worth taking the risk of interference and the risk that jammers will proliferate. I think no, Mike thinks yes. Part of the reason I think this is a bad idea is because my experience with bright line rules tells me that where you have so many people interested in cell phone jamming it is inevitable that whatever protections are put in place will be whittled away over time. In addition, in a messy field like engineering, we disagree a lot about how easy/hard it would be to neutralize jamming, a critical question on the cost/benefit analysis.

3) Finally, we both agree that the wireless industry needs to step up to the plate and work with detention authorities to make solutions other than jamming affordable for for prisons, and that the FCC needs to address the problem of charges for prison calls made under proper supervision.

I expect Mike’s well reasoned and narrow disagreement will be manipulated by those who want to exploit this for their own profit (yes, I’m looking at you CellAntenna). That’s unfortunate. I hope that the wireless industry and correction facilities can work together to develop real solutions to the problem of contraband cell phone use before Congress pushes through legislation that would do more for CellAntenna’s bottom line than it would for prison security.

Stay tuned . . . .

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Tales of the Sausage Factory

FCC Begins Inquiry Into Arbitron Portable People Meter

Sometime back back, I noted the flap over the Arbitron Portable People Meter and the Petition by the Minority Media Telecommunications Council (MMTC) for the FCC to take action. The FCC put the Petition out on public notice last September, and has now issued a Notice of Inquiry on the matter.

As always, the questions are (a) why do we care about this? and (b) Even if we care, does the Commission have authority to do anything? In answering this last time, I observed: (a) we care because the entire economics of the radio industry are driven by ratings, and the FCC’s own rules rely on Arbitron ratings for a number of purposes, and (b) the FCC can always investigate anything related to its areas of jurisdiction. At worst, it provides a good forum for debate and an opportunity to tell Congress “Yo! this is important, somebody needs to do something about this for these reasons.” these are pretty much the conclusions the FCC comes to in its Notice. After observing in footnote 1 that it has broad powers to investigate, the Commission frames the questions as:

This NOI investigates the impact of PPM methodology on the broadcast industry as well as whether the audience ratings data is sufficiently accurate and reliable to merit the Commission’s own reliance on it in its rules, policies and procedures.

I am hopeful that we see a good, robust debate here although I don’t expect anything in the way of Earth-shattering revelations. There is an interesting problem of what information Arbitron will reveal about its processes, and whether the Commission will provide some assurances that it will keep proprietary information out of the public record. If it does, it makes it much harder for those who say the process is unfair to respond. But if it doesn’t, it’s analysis is going to be incomplete.

Mind you, it’s not at all clear what authority the FCC has over Arbitron directly. But the FCC can take certain actions if it doesn’t like what it sees, giving Arbitron incentive to play and try to resolve concerns. The FCC can declare Arbitron unreliable and no longer rely on it for regulatory determinations. That’s not exactly the kind of publicity you want if you make your living based on the accuracy of your ratings system. Alternatively, if the FCC doesn’t see anything wrong, it can always conclude that Arbitron remains acceptable for the FCC’s purposes. That will be of enormous assistance to Arbitron in removing any cloud over its rating system.

Bottom line, the NOI is a smart move by the Copps FCC on multiple levels. It doesn’t assert any authority, it doesn’t prejudge, and it services an important Democratic constituency. Hopefully, Arbitron and its critics will use the FCC as a neutral forum to develop an mutually acceptable solution.

Stay tuned . . . .

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Tales of the Sausage Factory

3 p.m., FCC approves another item. Crowd Thins, But Reporters and Hardcore Policy Wonks and White Space Folks Hang On.

O.K., now coming up on 3 p.m. on the meeting that should have started at 11 a.m. The FCC has announced that the Commissioners voted another relatively non-controversial item on circulation, the grant of the Verizon C Block licenses.

As some folks may recall, Google filed a Petition with the FCC after the 700 MHz auction requesting that they put some teeth into the C Block conditions and provide further clarity on how they can enforce the conditions against Verizon if it plays games. It is expected that the item basically says “yes, we mean it,” but not give any further details. We’ll have to wait for when they publish the Order to find out.

Meanwhile, those of us desperate for a white spaces vote continue to sweat it out and hope the Order doesn’t get derailed. Those opposed, unsurprisingly, are now hoping for the opposite.

NEWSFLASH: According to FCC staff, while Commissioner Godot will not vote today, he will surely vote tomorrow!

AAAAAARRRRRRRRRRRGGGGGGGGGGGGHHHHHHHHHHHH!!!!!!!!!!!!!!!! Vote this thing!!!!!!!!!!!!

Stay tuned . . . .

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Tales of the Sausage Factory

Live Blogging the FCC Vote — What If They Called A Vote and Nobody Came?

So here I am, waiting for the white spaces vote, votes on the merger items, and a few other things. The FCC adopted two orders on circulation already — an item on closed captioning and an item on distributed television systems, a technology that will allow digital television broadcasters to keep their current viewers after the transition (I will explain this later). Given that Martin pulled the USF/Intercarrier comp itemyesterday at the insistence of the other Commissioners, that leaves (a) The Verizon/Alltel deal, (b) the New Clearwire deal, (c) the white spaces item, and (d) Google’s pending petition to have the FCC put some teeth into the C block conditions before granting the licenses to Verizon.

The meeting was scheduled for 11 a.m. It’s now after 12:30 p.m. Martin was down here for about an hour before heading back upstairs again. He appeared surprised at the delay.

Stay tuned . . . .

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Tales of the Sausage Factory

Comcast Wins Lottery on BitTorrent Appeal.

Yesterday, the Panel on Multijurisdictional Litigation (PMJL) awarded the Comcast-BitTorrent Appeal to the D.C. Circuit. Obviously I would prefer to be elsewhere for the same reason Comcast wants to be there (despite being actually located in the Third Circuit), i.e. the D.C. Circuit’s reputation as being a pro-industry anti-regulatory bunch of judicial activists who don’t give a squat about actual case law. Still, since some of our strongest precedent is from the D.C. Circuit, and the D.C. Circuit has surprised Comcast in the past, I am not exactly weeping in despair here.

In a portent of things to come, Comcast also filed a challenge to our standing with the PMJL. I expect this to be renewed in the D.C. Circuit once the cases are consolidated.

Anyway, for those following the sequence of events, the Ninth, Second and Third Circuits will now transfer the cases to the D.C. circuit, which will consolidate them. Folks will have a chance to intervene in either or both sets of cases, and parties may also try to file other motions (e.g., motion for stay, motion for expedited trial). Anyone involved in the matter below (or having an interest impacted by either our Petition or Comcast’s) has a right to intervene — either on the side of the FCC or on the side of Petitioner. Also expect cross intervention where parties who like the FCC’s decision in the Comcast-BitTorrent case intervene in support of the FCC and against Comcast and in support of us and against the FCC. Or in support of Comcast in the Comcast appeal and in support of the FCC in ours. PArties may also file for permission to appear as amici for one side or another.

After the time for interventions passes (which I am too lazy to calculate at the moment), and the court resolves any pending motions, the court will set a briefing schedule. It is too early to guess the time frame until we see what motions parties file (other than interventions).

Stay tuned . . . .

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Tales of the Sausage Factory

The FCC Starts Its Wireless Microphone Investigation. Will Broadcasters Throw Broadway Under A Bus?

The FCC has just released a Notice of Proposed Rulemaking addressing the problem of wireless microphone operations in the 700 MHz Band and how it may screw up the introduction of new public safety and commercial wireless services. It basically proposes to adopt the recommendations we made to prohibit any future manufacture, sale or importation of wireless microphones that operate on the relevant 700 MHz frequencies, and prohibit operation on those bands after the DTV transition in February.

Along the way, the Commission asks for comment on our informal complaint and Petition for Rulemaking. Oh yes, and the NPRM also announced that the Enforcement Bureau has commenced an investigation into the wireless microphone manufacturers and their sales tactics.

I wish I could take all the credit for this one, but I really gotta hand it to Shure. I’m not saying that Shure’s insistence on dragging FCC engineers out to field testing so they could see first hand the blatant way in which Shure and others violate FCC rules, getting all their illegal customers to right into the FCC by the thousands and regale the FCC with tales of unauthorized use all over the country, and generally rubbing the FCC’s nose in the fact that Shure and the rest of the industry were engaged in widescale violation of the rules over and over and OVER again necessarily had anything to do with this. I will merely note that it is a happy coincidence of timing that the FCC commenced its investigation the Friday following the field testing, and immediately thereafter put our Petition out for comment attached to an item already in the works. No, it is no doubt my good looks and charm once again bending the FCC to my will.

To the extent the industry press has picked up on this, it has (surprise!) assigned credit for this to the great Google Overlords. Mind you, the same article also thinks that wireless microphones “produced little or no complaints because their signals have traditionally been programmed to avoid TV channels,” so this will tell you something about the accuracy of their analysis. (For those wondering, wireless microphones are dumb devices and the user selects the channel. It has no sensing equipment or database or any of the interference avoidance tech proposed for white space devices.)

I would also say that much as I would love to see this as a sign that the FCC supports opening up the white spaces for unlicensed use, I don’t. The NPRM is very carefully neutral on the subject, without any statements from Commissioners one way or another, and voted on circulation (meaning it is non-controversial). No, I think the Register pretty much got it right when they described this as “having sold off 700MHz to the highest bidders last year, the FCC now has a responsibility to clear the area before the new tenants move in.” The ball on white spaces, whether licensed, unlicensed, or not used at all is still very much up in the air.

Mind you, this certainly impacts the debate over the white spaces, and potentially removes a stumbling block by providing a road map on how to address the wireless microphone issue in a way that punishes spectrum scofflaws like Shure while protecting users like churches deceived by Shure’s sales tactics (and give parties an incentive to come to the table and do a deal over real interference concerns before the FCC bites their patooties off). And I think it is fair to say that we did help move the debate forward by providing the FCC with the pathway to making this possible. But I would say that all the Commissioners are still waiting for the field testing results to come in before making a final decision on the merits.

What is really critical here for the white spaces proceeding is that the broadcasters now have to make a very unpleasant choice. Do they embrace the radio pirates and forgive Shure for unleashing a million illegal transmitters all over “their” spectrum? Or do they stick to their usual guns and condemn any unauthorized use of the broadcast bands as unmitigated evil and warn that sanctioning a million new authorized users — with new General Wireless Microphone Users added every day — could utterly destroy broadcast television as we know it? Either way presents problems for broadcasters — with the added bonus of highlighting their blatant hypocrisy. Embracing the likes of Shure and unauthorized users undercuts all the hysteria broadcasters have so carefully cultivated, especially when they have always maintained that opening this spectrum to anyone new would destroy free over the air television. OTOH, siding with the FCC on enforcement against Shure and warning the FCC not to allow millions of transmitters operating at higher power and with fewer protections in the white spaces destroys their ability to use Broadway, the Grand Ole Opry, and all those megachurches as human shields.

Needless to say, the broadcasters have desperately sought to avoid saying anything on the subject and have tried to spin this to their advantage: “Gosh, moving wireless microphones off Channels 52-69 will sure make it harder to fit in all them white spaces devices,” claims David Donovan of the Association for Maximum Service Television, a trade association for TV broadcasters that has fought against any sharing of the white spaces.

The problem with this statement is that, according to the FCC, there are only 156 licensed wireless microphones authorized to operate on Channels 52-69. That’s not a heck of a lot of crowding. Unless, of course, MSTV plans to support our Petition for Rulemaking and support creation of a General Wireless Microphone Service licensed by rule and open to the general public.

Mind you I expect that MSTV, like the McCain campaign, will continue to get a free ride on this from an obsequious broadcast trade press and a tech press that cannot get past the Great Google Overlords. But they are going to have to file comments on this at some point. And I imagine that, as they come in to lobby against white spaces, the good folks at the Commission will want their opinion on this separate but related matter. I’ll certainly be interested in rading those Ex Partes.

Stay tuned . . .

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Tales of the Sausage Factory

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

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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Tales of the Sausage Factory

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 . . . .

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Tales of the Sausage Factory

It's Nice WhenThe FCC Listens — Sorta. Why I like The Proposed Resolution Of Comcast's Complaint Against Verizon But Why Some Of It Makes Me Uneasy.

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 . . .

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