Tales of the Sausage Factory

White Spaces Wrap Up: Exclusive Licensing, Or The Part 101 Poison Pill

As we enter the last 24 hours before the critical and transformative November 4 vote (no, not this one, the FCC vote!), a last battleground has emerged. While the broadcasters and wireless microphone guys have generally not generated any traction, a final possible hitch has shown up on the question of higher power for rural providers. While I applaud the sentiment, this has become the last ditch effort to sneak a “poison pill” into the Order by keeping alive the hope/fear of exclusive licensing in the band.

As I have long warned, the potential last-minute threat to unlicensed in the band would not come from broadcasters, whose interference claims have been discredited and who have stooped to rather ridiculous smear tactics, or even from wireless microphone manufacturers and their vast horde of politically powerful pirate users. No, I have always believed that at the last minute, the real flank attack against the public interest would come from the licensed wireless guys pushing for licensed backhaul.

Which is why I am unsurprised to find the last potential stumbling block toward the finish line, after five years of unprecedented testing and investment, comes from a push for some kind of exclusive licensing scheme, either as an immediate set aside in the existing order or as part of a further proceeding.

I call this the “Part 101 Poison Pill.” Part 101 of the FCC’s rules governs high-power point-to-point transmission links of the sort used by telecommunications companies for transmitting significant distances. Part 101 is different from cellular licensing, in that it can accommodate multiple users on a “first in time, first in right” basis. Whoever comes in later must protect everyone who comes in earlier, which essentially makes it a very high-cost game of “king of the mountain.”

What makes exclusive licensing, even the relatively more open licensing such as Part 101, such a poison pill for unlicensed?

See below . . . .

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Tales of the Sausage Factory

White Spaces and the CTIA Game Changer

The idea of auctioning the broadcast white spaces, rather than opening them for unlicensed use, is not new. It started out as an NAB “poison pill” back in 2005, when we looked like we might be making progress on getting a pro-white spaces amendment in the DTV transition bill that ultimately became the Digital Tranisition Act of 2005. When the FCC reinvigorated the proceeding in 2006, the NAB managed to get the FCC to put the question of licensed v. unlicensed in the Further Notice. But the NAB doesn’t want any neighbors, either licensed or unlicensed, and has focused its efforts until now on trying to kill the whole idea rather than on trying to promote licensing and auctions rather than unlicensed.

But the idea of licensing the white spaces for cellular or backhaul has gained new life recently, particularly after the 700 MHz auction. Both Verizon’s Steven Zipperstein and analyst Coleman Bazelon recommended this in their testimony at the House Telecom Subcommitte hearing on the 700 MHz auction. That comes on top of a serious filing by CTIA on the benefits of auctioning some of the white space and leaving a smidge so that unlicensed technologies can continue to develop.

We’ve now gone from NAB poison pill to serious issue. The proposal has not yet gained traction, but it does not do to underestimate CTIA and its members because, particularly after the 700 MHz auction, a number of its members really need that spectrum. This has the potential to change the game radically, including shifting alliances as the threat becomes more credible.

Analysis below….

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Tales of the Sausage Factory

Possible AT&T Shift on Open Access May Signal Seismic Shift In 700 MHz Auction

Until now, the existing incumbents of all shapes and sizes have presented a solid, immovable wall of resistance against any kind of “open access”/wholesale obligation attached to a license. In the context of the Frontline proposal in particular, carriers have railed against it as a “poison pill” that would scare away potential bidders and reduce the projected $15 Billion auction revenue to spare change and half a wooden pencil.

Which makes this tepid expression of possible interest in a Frontline “E Block” license despite an open access condition by AT&T Senior Vice President Robert Quinn Jr. epic news and potentially another major win (on par with support from Senator John Kerry and Presidential candidate John Edwards) for the forces of open access. According to the article — reporting on an interview Mr. Quinn gave to the Center for Public Integrity’s Drew Clark:

“It’s a different business model for us, but one that we’d be looking at,” Quinn said in an interview with the Center for Public Integrity’s “Well Connected” Project. “If, in the end, that spectrum is attached to public safety, and for example there’s a wholesale requirement, we’ll take a look at it.”

AT&T is waiting for final FCC rules before deciding whether or not to place a bid. “Our position is that we need to see the specific rules the FCC adopts for the auction before determining our level of participation,” AT&T spokesman Michael Balmoris said on Monday. The FCC rules are expected by July.

That looks pretty tame, until one considers the speaker and the context. In spectrum lobbying terms, this is roughly the equivalent of Iranian President Mahmoud Ahmadinejad saying that, under the right circumstances, he would accept an invitation to visit Israel and meet with Israeli Prime Minister Ehud Olmert.

More importantly, AT&T’s statement that it would consider bidding on an E Block license with an open access condition has significant implications for the debate about the auction itself. Statements churned out by incumbents and their think tank cheerleaders — such as this Washpo Op Ed from two CTIA consultants/think tank dudes — portray open access as so onerous that it will kill the auction revenue. AT&T’s statement that it would consider bidding on open access licenses demonstrates that such arguments are utterly bogus. Because if AT&T would consider bidding, you can bet your last cell tower that every other major incumbent would conisder it as well. What, sit it out and let all that spectrum go to a rival?

So why would AT&T even hint at a change in position, given how deeply this undermines the “absolutely no, never, you must be mad” rhetoric of the anti-open access opposition? For wild speculations, see below . . . .

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Tales of the Sausage Factory

Stevens Bill Score Card Pre-Mark Up

And what a mark up it will be! Senators have proposed hundreds of amendments (more than 250 at one point, but now down to something over a hundred as deals get done). Meanwhile, the Stevens Bill itself has undergone significant rewrite. You can find the final pre-mark up draft at Jim Baller’s site here. For comparison, you can read about the Democratic substitute here (and my brief summary of same here).

Below, a brief score card on some issues I singled out previously: Opening broadcast white spaces (still in, but facing a “poison pill” amendment from DeMint (R-SC)), program access (dropped by Stevens); Broadcast flag (sadly alive and well); Munibroadband (much improved, thanks in no small part to Jim Baller and the coalition of tech folks, muni orgs, and public interest folks put together by Jim Kohlenberger); and, of course, net neutrality (brought up to COPE levels, with some flavoring added to try to buy off the Christian conservatives).

Most importantly, the telcos have inserted a very nasty joker in the deck, known as “Section 1004.” This Section is designed to rig any post-legislation appeal by giving the D.C. Circuit exclusive jurisdiction over all things FCC. This would be a catastrophe not merely for network neutrality, but for media ownership and just about any other provision of law (and therefore merits a post of its own).

More details below . . . .

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My Thoughts Exactly

Open Laszlo

Here’s a write-up lifted from the site of Oliver Steele., Laszlo’s chief software architect. (I’m the Laszlo “doc guy.”)

As of today, the Laszlo platform for building rich internet applications is open source. This includes everything: the server software, the client software, the examples, the documentation, the language — the whole platform. Like Mozilla, this is open source with a corporate sponsor; and like Mozilla, it’s honest-to-goodness open source — no dual licensing, no poison pill. It uses the Common Public License, listed on OpenSource.org.

OpenLaszlo.org has the source distribution for our new release, LPS 2.2, which also includes support for SOAP and XML-RPC, and over 500 new pages of documentation. For developing Laszlo applications, as opposed to hacking on the source to the Laszlo compiler and runtime, I recommend the binary distribution instead, which comes with installers for MacOS, Linux, and Windows. (You don’t have to actually write any code to see some neat stuff in the standard installation.) If you want to see some examples of the kinds of applications you can write, take a look at the customer showcase, the demos, and at MyLaszlo.com. If you want to dive into the source code, look at Laszlo Explorer and the Developers Guide.

Today is part one: the source code is available, the license is free. Part two is to open up our development process, including our source repository and bug tracking systems, so that you don’t have to be at Laszlo Systems (the company) to see what’s going with Laszlo (the open source project). Currently we’re in send-mail-to-the-dev-list mode for questions, and send-us-a-patch mode for contributions — about on a par with some of my other open source projects, but we can use those corporate sponsorship $$ to do better.

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