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.... [Read More!]

It's always nice when you can give yourself free advertising time on television. So no surprise the National Association of Broadcasters has launched a major advertising campaign in the DC Area to persuade members of Congress that allowing unlicensed use of the broadcast white spaces will mess up the transition to digital television. Indeed, the NAB has made this into a grand campaign, including a new website called “Interference Zones” complete with adorable graphics of “Wally, the Unlicensed Wireless Device” messing up the “pristine digital television signal” to your “beautiful new digital TV.” I particularly like how they got Wally's fun-loving but malicious grin rendered so “pristinely.”

And, in case you missed it the first time, the site also contains a link to the Association for Maximum Service Television classic “educational” video Your Neighbor's Static. “Your Neighbor's Static” is as realistic a portrayal of the effects of white spaces devices on TV as Reefer Madness is a balanced documentary on the pros and cons of medical marijuana.

It's all just the usual fun and games here in DC, and a fine example of why the broadcasters have so much power as a lobby.

More below . . . . [Read More!]

Well, it's been a fun couple of months. I expect we will see more action on the actual implimentation of 700 MHz Auction, new developments, and so forth. But I'm rather hoping to ratchet 700 MHz back from overwhelming white-whale-type obsession to just one more spectrum item amidst the spectrum and non-spectrum stuf I cover. For example, the M2Z application has taken a serious turn for the interesting.

So, preserved for posterity, and because it makes my life easier than going through the archives, I list every TotSF 700 MHz Auction post to date.

Stay tuned . . . .

[Read More!]

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 . . . . [Read More!]

The Wireless Bureau has released its Public Notice (“PN”) for the 700 MHz auction. In addition to setting the date for the start of the auction as January 16, 2008, the PN also addresses a bunch of questions left over by the Order. The biggest of these are: (a) Setting rules for package bidding; and (b) setting reserve prices on a “per block” (rather than “per license” basis) for the auction.

What does that mean? Well, the Commission in the Order decided to protect itself politically from accusations that it had set the rules too aggressively and therefore killed the auction. The Commission therefore used its authority to create “reserve prices,” or minimum prices that bidders must meet before the Commission will award the licenses. The Commission has used reserve prices before, but generally on a license by license basis not on a “block by block” basis. Nor has the Commission ever guaranteed a reauction if a block of licenses fails to meet a set reserve price.

“Package bidding,” as discussed in previous posts, means allowing people to bid on a set “package” of licenses rather than requiring a bidder to bid on each license individually. This encourages people to bid because it means I won't get stuck with licenses I don't want if I fail to win one or two critical licenses that make it worthwhile (this is called the “exposure” problem). So if I only want the C Block licenses if I can get national coverage, I will still participate in the auction because I know if I lose any C Block licenses, I won't get stuck paying bilions for the licenses I did win but now no longer want.

The use of this combination of factors, along with the failure of the Commission to adopt an “either/or” rule that would require a bidder to go after either the D Block license or C Block licenses, makes me uneasy. I can see scenarios where a bidder gets the D Block cheap, then chooses to enhance coverage by bidding aggressively for one or two C Block licenses. That's not necessarily bad, except it may prevent the creation of a second national player because it deprives the second national player of licenses it needs to complete its package (I'm not postulating deliberate blocking, you understand, I'm looking at the potential interplay of circumstances frustrating the likelihood of new national entrants). OTOH, the ability to bid on both D block and C Block may encourage bidders to be more aggressive in both blocks, and may create a larger pool of bidders for these blocks over all.

But what really worries me is the reserve prices. Why? See below . . . . [Read More!]

Regular readers will know that, as far as I am concerned, getting anonymous bidding automatically makes this Order a big win. I pushed hard on this in the lead up to the AWS auction a year and a half ago. Sadly, I lost. As a result, the cable companies were able to block the DBS guys from winning any new licenses, and the incumbents generally succeeded in keeping out any potentially disruptive new entrants (the cable guys having made it clear they would not compete with the cellular guys).

Fortunately, Greg Rose spent a year crunching the data and demonstrated that if the incumbents hadn't rigged the auction, it sure looked like it from a statistical analysis/game theory perspective. With this “smoking gun” evidence in hand (utterly dickish footnotes by the Wireless Bureau staff to the contrary), we were able to persuade the Commission that adopting anonymous bidding rules would make the auction more competitive, give new entrants a better chance, and as a result probably increase the auction revenue overall.

So, having lost this last time around, I consider it a real coup to get it now. As both Google and Frontline supported anonymous bidding as necessary to encourage new entrants, I am hopeful that we may still get our “third pipe” provider even without wholesale open access.

Analysis below . . . . [Read More!]

Few things in the last few days have generated more discussion and overall pessimism in the Order than the C Block “wireless Carterfone” or “network attachment” conditions. “A tease,” says Art Brodsky. “Crippled by loopholes,” opines Susan Crawford.

“Not so fast!” Says yr hmbl obdnt blogger. In point of fact, there is a a hell of a lot here to like in the C Block conditions. Not just for trying to get actual devices attached, but in terms of FCC precedent and broader spectrum policy. This is an “Eyes on the Prize” moment, similar to the preliminary decisions that culminated in Brown v. Board of Education. We did not win the grand prize, but we got a lot good precedent for future spectrum reform.

Further, as I explain below, I do not think the conditions the FCC imposed here are meaningless. To the contrary, I think the rules are about as aggressive as possible to draft (as I worked hard with Commissioner Adelstein and his staff to think of anything I could possibly add to them). But at the end of the day, what matters is the political will. If the next FCC (which will be the FCC that enforces this) wants to give these license conditions meaning, it has the tools to do so. If a future FCC wants to make this meaningless, then there is nothing we can do no matter how well we draft things.

And I will add that if anyone has some better ideas on what to put in as rules, they should certainly file Petitions for Reconsideration

My analysis of why the C Block conditions do matter below . . . . [Read More!]

At the end of last week, the FCC released its mammoth 350 page Order on the 700 MHz Auction. As advertised, it resolves most of the major issues, but delegates some details for the Wireless Bureau to resolve so we can continue to have wonky auction fun through the fall. Because the only thing better than Fantasy Football is Fantasy Reserve Prices.

Below, and for the next several posts, I give my patented Sausage Factory long, detailed analysis. Briefly, in my usual contrarian-but-hopefully-sophisticated-and-nuanced-way, I think we did pretty well. In fact I think we totally kicked ass, took names, and got something that — over the long haul — has the potential to seriously revolutionize wireless and broadband policy in the United States.

“Wha?” I hear you cry. “I thought we lost on wholesale. I thought the Order had only wussy half measures that amounts to either a giveaway to the incumbents for crumbs or Google (depending on whom you hate more). Are you just trying to buck us up and make us feel better?”

True, we lost on wholesale and the FCC did not go as far as I would like on the “wireless Carterfone.” But, as with the debate over the AT&T/BS Conditions, we need to assess the results as part of a long-term campaign for reform rather than expecting to achieve a Glorious Revolution in a single stroke. This was our Battle of Britain (or, for those who think of us as a bunch of Socialist enemies of capitalism, our Batte of Stalingrad). We have stood before the united might of the telco, cable and wireless industries, halted the tide of “business as usual,” and extracted some key changes and precedents that we shall leverage for the next phase of the campaign to create a 21st Century information grid worthy of a democracy; an information grid that extends the benefits of modern communications to everyone and eliminates the power of gatekeepers to control what we say and what information we discover.

Which, at the end of the day, is not too shabby — especially when compared to what we expected last April. We got some pretty huge stuff — things that will revolutionize this auction not merely help us for the long term.

Using my “Red Sox scale” of success, this feels to me a lot like the 1975 World Series. Looking back as an adult, I can see that it was one of the finest moments in professional baseball, with the Sox losing by a single run in the 7th game. But at the time, it felt like a Hell of a loss, precisely because we came so close to winning it all.

So I'm not nearly as down as most of my friends in the movement. Part of that has to do with long-term view over short term. Part of that has to do with whether I believe that Martin is acting in good faith or not (again, I'm contrarian in our community by saying “good faith” for reasons I will explain). Part of it has to do with an appreciation of the FCC's institutional dynamics including, to paraphrase Jon Stewart, the absolute dickishness of the Wireless Bureau staff.

I do see problems and issues in the Order, some of which I hope to get fixed on Recon, some of which reflect rational disagreements on the proper course and what level of risk we should take for political payoff (I'm talking about the reserve price stuff here). And, at the end of the day, we are still facing a host of unknowns that will depend on a future FCC's willingness to enforce these conditions. But in the end, I'm feeling we at MAP earned our corn and achieved things we can be proud of (I'll let the other members of PISC speak for themselves on that score, but I hope they feel the same way as well).

Because this is really, really long, and will probably take several days to cover, I am breaking this up into parts. Below, I provide some of the necessary institutional context for understanding the Order and why I think this counts as a big win.

More below . . . . [Read More!]

While the telco/cable lobbying war to make muniwifi illegal has died out (as demonstrated by the most recent defeat for the telco/cable lobbyists in North Carolina), the debate on the actual merits of munibroadband lives on. And it's a good debate to have. States, cities and local governments should consider their projects carefully. What works in St. Cloud, Florida or Philadelphia will not necessarily work elsewhere. And, with all the possible goals of a muni system (service to residents, service to muicipalities, public safety, digital inclusion, enhance local media, economic stimulus), it is a sound idea to have figured out your benchmarks for success in advance.

Unsurprisingly, those generally opposed to government providing services (particularly where such services are available or could be available from private companies) have spent much time and effort arguing that municipal broadband projects usually end as costly failures. These analysis generally use the standard economic criteria of a for-profit business. i.e., Does the network pay for itself over expected time?

That's an important question, particularly if a government has made this a goal of buiding the network or if you are a private business looking at a public/private partnership. But governments often make investments in infrastructure or provide services on a residential or subscription basis for other reasons. Here in DC, for example, no one pretends that the City will directly make back the hundreds of millions of dollars spent to attract a professional baseball team. This cost gets justified on the grounds that it will revitalize the Anacostia waterfront area, serve as a source of civic pride, and offer additional benefits that justify the cost.

Which brings us to the performance of Minneapolis muniwifi network in the recent bridge collapse diaster. The presence of the network proved an enormous boon to public safety and the citizens of Minneapolis. Because the city had deployed the network for residential service, it was there when they needed it for public safety. That's difficult to capture in a balance sheet, but there's no doubt you're damn glad to have it when you need it.

Of course, local governments can always build public safety muni networks. And many do. But multiple use networks (like the Minneapolis one) are a good way to fund such networks, make sure they get fully deployed, and make sure they stay upgraded and operational. A town reluctant to spend money on public safety communications (and many are) may feel better if the public safety network will also provide low-cost connectivity to poorer neighborhoods. Alternatively, a town might feel better about providing residential services at a possible financial loss if they look on the network as also providing critical infrastructure for emergencies.

At the end of the day, every local or state government looking at municipal broadband needs to do a careful evaluation and figure out what it wants and how it will pay for it. The business case is an important piece of that, especially if local governments promise their citizens the network will end up paying for itself with subscriber fees. But the tragedy in Minneapolis provides an important reminder that local governments have other measures of success besides turning a profit.

Stay tuned . . . .

As most of you may have heard by now, the case for using the television “white spaces” for unlicensed use hit an unfortunate snag when the prototype submitted by Microsoft and the tech allies did not perform according to spec. MS and friends now claim that the FCC managed to break the prototype when they took it out of the box. Meanwhile, of course, the broadcaster are making the most of this opportunity to repeat that unlicensed use of the white spaces can never work (ignoring that the the Philips prototype worked perfectly in the lab and that New America Foundation submitted its own, independent engineering data in support of sensing technology).

I have blogged extensively about this on my Public Knowledge blog. Briefly, while an annoying political set back, it means very little from an engineering perspective. There is plenty of evidence from both the Philips proptotype, the New America Foundation data, and other relevant technologies (such as the sharing of the 5.3 GHz space with military radar) to prove the essential soundness of the concept. While important work needs to be done in terms of actually setting appropriate standards and then building devices that will perform to spec, we know it can be done — assuming Microsoft's blunder doesn't create enough political noise to kill or cripple the project.

Which is why I bother to blog again about it here. To underscore yet again the importance of making sure citizen's movements are citizen driven and that we do not allow ourselves to let corporate allies do all the heavy lifting. It's nice to have big friends like Microsoft and Google. They sure as heck open a lot of doors and can bring a lot of resources to the fight. But never, never, NEVER make the mistake of letting them handle the driving of an issue when the public interest is at stake.

And, if I may make some pointed remarks to my friends in the open software and GNU Radio movement. Some time back I linked to this excellent piece urging techies to spend more time making the mechanisms of government work and less time merely bitching about how government keeps coming up with the wrong result. Here is an excellent opportunity to step up to the plate and provide some open source prototypes (or even simply additional test data) that demonstrate proof of concept. No, this is not a simple project. It requires an investment of time and resources. But the payoff is potentially huge. I'm making a standing offer for techies who want to contribute some real science and engineering know-how to the cause of open spectrum: if you have something you want submitted, contact me and I will work with you to get it in the record (or explain to you why it is not as useful as you thought and how you can improve it). Because I can tell you from experience that the engineers at the FCC are actually very eager to get as much data as possible and to get the engineering right on this.

Because freinds, this is like anything else in our democracy. If you don't participate, then you're just bleeting sheep. But if you come play, you can make a difference. As Ben Franklin once said: “Democracy is two wolves and a lamb voting on what to have for dinner. Liberty is a well armed lamb protesting the vote.”

Time for us to see if we have enough well armed lambs, or if the techno-herd would rather see Microsoft do the fighting.

Stay tuned . . . . .