So here I am, watching all the motion in the backfield as the Commissioners trickle in following this morning's delay.

For those who missed it, the meeting was scheduled to start at 10 a.m. Then got switched to 12:30 p.m. (Frankly, I didn't mind, as I had not gotten a seat at 10 a.m. Real full house here today). When I got back at 12:30, I found Fred Campbell (chief of the wireless bureau) and some of the wireless staff already in the hearing room. A hopeful sign! Still, it has taken an additional hour to pull everyone together. Martin came in at about 1:10 or so, with the rest trickling in later. During the last half hour, I could see various high-ranking staff dealing with the last minute details from whatever change got made this morning.

We've now started with three witnesses to describe the need for various features of the Order. We have two public safety guys and Jason Devitt — CEO of Skydeck and supporter of both wholesale open access and device open access.

Having outside witnesses at an open Commission meeting called for the purposes of voting on an agenda item is highly unusual. Martin has done this on occassion before for very significant and potentially controversial items (the ones that come to mind are the meeting where they voted to require VOIP providers to provide 911 services, the Katrina follow up, and the 2006 cable competition inquiry (which took place in Keller, TX).

So what's going on here? More below . . . . [Read More!]

Yesterday, the House Commerce Committee held its FCC Oversight hearing. As expected, the 700 MHz auction attracted a great deal of attention. As I wrote in previous entries, this was make or break time for wholesale open access. If Commerce Committee Chair John Dingell (D-Michigan) and Telecom Subcommittee Chair Ed Markey (D-MA) voiced strong support, that might push Martin to adopt full wholesale open access in light of Google's commitment to bid. OTOH, if the House Dems did not back wholesale, then Martin would be unlikely to budge.

Dingel and Markey did not back wholesale open access. Indeed, Dingell backed off slightly from his previous hard-line stance on even device open access (aka, “open access-lite” aka the “Martin plan”), asking for assurances that including such a condition would not hurt auction revenue or limit bidding. Markey, while enthusiastically supporting device open access and suggesting ways to improve it and make it effective, did not mention wholesale at all.

The biggest supporter of wholesale open access was Mike Doyle (D-PA), who gets a huge Sausage Factory cheer for stepping up to the challenge. You can see a clip of him asking the Commissioners where they stand on wholesale open access here. The good news is that Democratic Commissioners Michael Copps and Jonathon Adelstein remained staunch in their defense of wholesale open access as a means of encouraging competition and deployment. Intriguingly, Martin did not slam the idea, but said this was not the place to do it because he had concerns about the incentives for network build out of wholesalers. McDowell remained adamant against (as he did against even Martin's device open access proposal), although McDowell praised the pending FCC proceeding to open the broadcast “white spaces” for unlicensed use (which I hope he remembers when the time comes). Tate did not answer Doyle's question (no time), but elsewhere said she was keeping an “open mind” on device open access.

Republicans, with the exception of Pickering (R-Miss) slammed Martin hard for supporting even device open access. To his credit, Martin defended the idea that the auction was not about maximizing revenue but about getting the best policy. But the near-uniform opposition to any conditions on licenses by Republicans, combined with the silence of key Democrats on wholesale, puts Martin in a real bind.

So what happens now? Are there any cards left to play, rabbits to pull out of hats, or Corbemite maneuvers to run that could still save wholesale open access. Yes, but they are very long odds indeed. With the vote now scheduled for July 31, we are just after the two minute warning and down a touchdown and a field goal.

More analysis below . . . . [Read More!]

Tonight, and for the next several days, Senator Richard Durbin (D-Il), the #2 man in the Senate, is conducting an experiment in direct democracy and taking a bit of a risk. He will spend the next week in real time blogging over potential legislation. No carefully crafted “town meeting” or managed event, and no showing up as a walrus a la Second Life. Just a chance for people to actually hash out issues with someone who will vote on these things in the Senate.

Here is a reprint of the announcement. I will add that I will be participating as a featured blogger as part of the debate on wireless policy and munibroadband on Thursday night.

Stay tuned . . . .

Starting this Tuesday evening, July 24 and each evening this week at 7pm EST on OpenLeft.com, Senator Durbin and his staff will blog nightly on a broad swath of broadband policy issues. Based on this discussion, the Senator wants to attempt to write legislation this session. Each evening kicks off with discussion from individuals who have worked a long time on the topic of the evening, but the intent is to spur broader comment from as many as is possible. This is no meaningless exercise: it is a genuine attempt to try to open up the legislative process. All input matters in a very real way.


I've attached below links to the letter announcing the initiative as well as the schedule for the week. Please feel free to share it with those you think might be interested in taking part. It is my hope that those who care deeply about these issues will blog about it, point folks to our discussion, and comment themselves. We'll also be scouring the web for other places that related discussion happens this week, so if you blog about it, please let me know so we can follow where discussion goes on your site too.


I hope you'll join us and help to get the word out. Please feel free to contact me with any questions.


Press release: http://durbin.senate.gov/record.cfm?id=279504
Open Letter: http://www.openleft.com/showDiary.do?diaryId=318

The Google policy blog has this excellent post explaining the “blocking premium” and “incumbent discount” concepts in bidding. I've sprinkled pieces of this in variuous posts, but this really lays it out nicely in one place.

Stay tuned . . .

So yesterday, AT&T was extolling the virtues of the Martin plan. Among its virtues, Jim Ciconni included:

In effect, Chairman Martin’s plan faces Google and others with a “put up or shut up” opportunity. If they are serious, they will be able to bid and test their model in the marketplace against the business models of companies already enjoying widespread consumer acceptance.

Critically, Ciconni was referring to the “reserve price” feature of the Martin plan. To protect himself against the threat that even his device only open access would depress auction revenues, if the 22 MHz “C” block did not fetch at least $4.6 billion in bids, the FCC would cancel that part of the auction, split the 22 MHz int two 11 MHz blocks, and reauction without conditions. (Reserve prices are not uncommon in spectrum auctions, although as far as I know they have never been tied to a specific condition.)

So today, Google's Eric Schmidt called Ciconni's raise. In a letter to Chairman Martin, Schmidt committed to bidding a minimum of $4.6 for the “C” Block — but only if the Commission adopts all “four opens” that Google demanded in its letter last week and endorsed by the public interest coalition, Frontline, and a bunch of others. That means not just real device attachment and open application rules, but also real wholesale obligations at non-discriminatory prices. (You can find Google's blog post explaining their letter here.)

The fear that Google would not bid no matter what, or that only one or two companies would bid on a license with wholesale open access conditions, has been one of the central features of the debate. Even ardent believers in real open access like Commissioner Adelstein have expressed real concerns over this. And, as I have noted previously, AT&T and its various sock puppets and Republican subsidiaries have used the threat of messing with the revenues as a major weapon against wholesale open access.

In a stroke, the Google letter changes the nature of the game. Google has now guaranteed that the feds will make their auction projections — but only if they include real open access. Meanwhile, rumors swirl that it may be AT&T, rather than Google, that sits this auction out. Suddenly, we switch from “will including wholesale open access keep out bidders and lower the revenue” to “will not including wholesale open access keep out needed bidders and drive down revenue.”

Meanwhile, the clocks ticks toward deadline. What does it mean? What happens next? And will I ever get a vacation this summer?

See below . . . . [Read More!]

AT&T did a full reverse thrust on Martin's proposed open access plan. According to this USA Today piece, Jim Cicconi, Senior Executive Vice President for Public Policy at AT&T, has nothing but praise for the genius of Kevin Martin and the utter perfection of his proposed 700 MHz band plan with “open access-lite”. No, seriously, that Solomon Guy was a moron compared to Kevin Martin and the clever way he has cut this spectrum baby in half. Further, to hear Cicconi sing it, he cannot imagine why anyone would think that AT&T was threatening to sue the Commission if it implemented this wonderful, perfect, glorious plan that the genius that is Kevin Martin has brought down from Heaven after spending 40 days and 40 nights reading the docket.

So, in the last two weeks, we have seen: AT&T hint that it will bid even if there is a wholesale open access condition, followed by AT&T bactracking without actually denying they would bid, followed by AT&T breathing fire and threatening lawsuits if the FCC adopts the “Google plan” of full wholesale open access. Now, a mere week later, AT&T loves the Martin plan and can't imagine how anyone could have thought otherwise.

I hope the AT&T Deathstar has good shock absorbers, or they are going to have serious whiplash from all these radical course reversals.

But I know y'all don't come here just to see me mock incumbents (although I like to think of that as an added service). The big question that everyone wants to know is WHAT THE HECK IS GOING ON AT AT&T? Sadly, short of sneaking some veritaserum into Jim Ciconni's coffee, there is no way to tell for sure. But I provide some guesses, theories, and speculations on the implications for the 700 MHz Endgame below..... [Read More!]

For my analysis, see here. Text reproduced below . . . . [Read More!]

Some of you may recall The America Channel and their efforts to blow the whistle on Comcast's exercise of market power in the cable programming world. As part of resolution of the Adelphia transaction, the Commission declined to provide any specific relief for The America Channel. They did promise to have a general rulemaking on the carriage complaint process (whereby independent programmers complain that cable operators have illegally discriminated against them) and the leased access process (whereby independents can lease access to the cable system) (a proceeding the Commission announced last month). The Commission also created special protection for regional sports networks (RSNs) so that Comcast could not do unto others as they did unto Mid-Atlantic Sports Network. As part of the FCC's order approving the Adelphia transaction, a regional sports network can demand carriage on Comcast or Time Warner, and can require that an arbitrator resolve the cost issues.

TAC, seeing that it would get nowhere with its old programming idea, proceeded to reinvent itself as a regional sports network. It has deals with a number of NCAA Division I schools — particularly for the less popular women's sports, which it will bring to the various regions the schools are in. TAC will pay for the production costs but will not pay for the games themselves, a reversal of the usual royalty agreement I understand. TAC has gotten carriage on cable overbuilder RCN, provided TAC can reach the critical mass of carriage on other providers to achieve viability.

So how's that working out, and what will the FCC do? More below . . . . [Read More!]

Unsurprisingly, in the swirl of folks around this week's House Commerce “iPhone” Hearing, rumors and gossip about the 700 MHz Endgame abounded. In the nasty-but-sadly-believable category comes a rumor that the Bells have asked (through a wholly owned subsidiary in the House) for the Office of Management and Budget (OMB) to do a “study” on whether any open access condition (of any definition) or other incumbent restriction (such as the spectrum caps urged by the Public Interest Spectrum Coalition) will depress auction revenue.

To those who know how these things usually work, the first question is “Why Ask OMB and not the Congressional Budget Office (CBO) or the Congressional Research Service (CRS), which usually do this sort of thing?” And to those of us who have lived through the last 6 years of an Administration that spells “research” P-R-O-P-O-G-A-N-D-A will cynically answer, “because that way the telcos can make sure they get the 'right' result.” Unlike CBO or CRS, which are under the control of Congress and generally take their research pretty seriously, OMB is directly under the control of the Bush administration.

Man, Telco spying for NSA is just the gift that keeps on giving. First the Bush Justice Department behaves like a nice little lap doggie and rolls over and plays dead for AT&T buying BellSouth. Then Bush tried to give the Bells retroactive immunity for what they did. Now, according to rumor, Bush will help the telcos rig the auction to keep the status quo.

Some needed background and why the oft-repeated idea that open access will automatically reduce auction revenue is a load of nonsense below . . . .
[Read More!]

In part I, I wrote about Martin's carefull PR blitz to frame the 700 MHz endgame. But its important to look at the substance of Martin's draft order itself. Because, as always, Martin is damn clever, and has put stuff in there that is bloody tempting to go for the compromise. To keep this manageable, I will limit my discussion here to just assessing the rumored offer and how I think we could improve it, keeping in mind that this is just press reports and really doesn't cover the panoply of issues. In Part III, I will provide my Field Guide for the Endgame, reminiscent of my original Impossibly Long Field Guide from April (how much things have changed in 3 months).

Assessment below . . . . [Read More!]

Martin has opened the endgame on the 700 MHz auction rules with some strategic press leaks to frame the debate and the circulation of his draft Order. According to USA Today and The Wall Street Journal, Martin's draft proposes including a network attachment/wireless Cartefone rule on two blocks (the “C” and “D” blocks). At the same time, Martin is redefining “open access” to mean network attachment/wireless Cartefone (the issue popularized by Tim Wu with the help of the iPhone) rather than the wholesale obligation pushed by Frontline and the Public Interest Spectrum Coalition (PISC).

What makes Martin's proposal particularly problematic is that it does actually do some good on issues I (and other folks in spectrum and media reform) care deeply about. It does represent a step forward. But it represents such a baby step, and deferred so far into the future, that it becomes useless for the near term (as Google argued in this recent filing (worthy of a post of its own)) and may actually take the pressure off the FCC to do something real like grant the Skype Petition or do something real on Network Neutrality.

Still, it presents a real challenge for the Democratic Commissioners as they enter into negotiations. Do they hang tough and risk losing everything on a 3-2 partyline vote? Do they accept a compromise, recognizing the political risk?

Worse for the Ds (and supporters of open access generally), the pressure from Congress has gone fairly hard against wholesale open access in recent days. The Republicans in the Senate and the House have bombarded the FCC with letters against wholesale open access. While some Ds (notably Kerry) have supported real open access, the Dem leadership and most Ds have remained on the sidelines. Still, tomorrow's House Commerce Committee Hearing on Wireless Innovation will offer Democratic leaders to weigh in — if they so desire.

This Is long, so I am going to break it up into a couple of posts. First, the difference between Martin Open Access and Real Open Access . . . . [Read More!]

Despite the efforts to make common carriage and structural separation of wholesale and retail services a forbidden topic of discussion (go read the piece Greg Rose and I wrote last year on how industry rationalizes policy by controlling the debate), the old and highly successful idea of structural separation for carriers continues to undergo a significant revival. For starters, the Europeans have recently embraced structural separation as a policy goal, and have consequently begun kicking our rear ends in broadband speed, price and overall adoption. For another, some of us do not forget that structural separation used to be the law under the Computer Proceedings, and that this old form of open access is what gave us the internet in the first place. Finally, the argument advanced that simply because we have more providers in the market, the underlying rationale for structural separation goes away, as always struck me as poor policy driven by ideology.

I am pleased to see that David Weinberg has now written this excellent piece on structural separation. This marks the second internet “thought leader” to offer well-written and challenging pieces pleading the case of structural separation, the first being David Isenberg's Making Network Neutrality Sustainable. Both these authors make the case for the next logical step in the Network Neutrality fight — going back to a set of rules that will prevent the network operators from interfering with the content that flows over the network by altering the economic incentives of the carriers.

Not surprisingly, we can anticipate two responses, the standard antiregulatory response (“Regulation is bad, hmmmmmmKay....Cause, if you do the regulation, then, that'd be government, and big government is bad, hmmmmmmKay....so regulation is bad, hmmmmmKay......”) and the economic response about how such a scheme destroys producer incentives so networks don't get built. The chief problem with the producer incentive argument, however, is that the empirical evidence in Europe and Asia appears to prove the opposite case: a combination of structural separation and government subsidy facilitates deployment and maximizes incentives and revenue throughout the value chain, while focusing strictly on incentives for core network providers (e.g., the AT&T's and Comcasts of the world) produces inferior results by every metric other than network operator profits.

My key takeaway here is that we continue to see a revitalized public policy debate that moves beyond the timid counsels of the edge-based industry players who define their “ask” in terms of what the incumbents have defined as possible, and despite every effort by the incumbents and their supporters to convince the broader public that “network neutrality” is dead and lawmakers should not worry their pretty little heads about it. Yes, we are in a legislative lull at the moment, as the public policy pendulum swings away from the incumbents and towards a more aggressive public policy more in line with the broadband success stories of Europe and Asia. But as Weinberg and Isenberg have shown, the public education and public debate remains quiet lively and continues to advance.

Stay tuned . . . .

The Surpreme Court has now ruled by 5-4 that school districts cannot use race as a means of determining placement to maintain integrated class rooms. Unsurprisingly, the four of the Court's “Conservative” wing (Scalia, Thomas, Roberts, and Alito) believe that any race conscious consideration by government is intrinsically harmful and would overturn the 2003 decision in Grutter v. Bollinger that upheld the use of race as one of several factors to promote diversity in higher education. (Technically, Roberts only goes so far as narrowing Grutter's holding to higher education, but it amounts to the same thing.) Kennedy, the eternal swing vote, still affirms that diversity (including racial and gender diversity) is an important value that the government can support, without really indicating how the school systems can do so.

Reflections on the fallacy of “color blindness,” and how a completely unrelated folksong by the Canadian folksinger Heather Dale makes the point about the need for diversity and role models more eloquently than I ever could, below... [Read More!]

So here I am, a nice Jewish Boy whose faith provides a critical motivation for media advocacy, and who believes that the Bible has critical lessons to teach us on social justice and effective advocacy, participating in this year's Blogswarm Against Theorcracy.

Why? Because as a student of history, I know how much I have to lose.

A bit of philosophical musing below . . . . [Read More!]