Category Archives: Regulation

Revive OTA?

OTA_seal.png Just last week I was talking to somebody who used to work for the Office for Technology Assessment, which was a bipartisan Congressional research group that brought in various outside experts to help out. She recognized me from various times I showed up.

Serendipitously, Susan Crawford says “OTA: You Are Missed“.

Nearly a decade ago, Congress closed its Office of Technology Assessment. The president of the Federation of American Scientists, a former OTA employee, called the closing the “equivalent of a self-inflicted lobotomy.” Between 1974 and 1995 OTA produced 750 thorough reports about a wealth of scientific and technical studies.

Since then, the Congressional Research Service (thanks, CDT!) has been providing Congress with quick summaries of issues, but CRS doesn’t have the deep technical expertise that OTA did, or the resources to do sustained studies. The National Academies have the time and the resources, but they take too long and they have too many constituents to serve.

In re-writing the Telecom Act and jumping into having the FCC regulate the internet, it would be good to have a neutral, expert, bipartisan group advising Congress about the consequences of their actions.

For example, such a group might have told Congress that current antitrust law isn’t well positioned to deal with problems of lack of competition since broadband was wrenched from one legal regime into another.

-jsq

FCC, Telcos, Congress, and FISA

court_rules.gif The FCC won’t investigate possible illegal telco activities:
The head of the U.S. Federal Communications Commission declined to investigate reports that phone companies turned over customer records to the National Security Agency, citing national security concerns, according to documents released on Friday.

FCC Chairman Kevin Martin turned down a congressional request for an investigation as a top intelligence official concluded it would “pose an unnecessary risk of damage to the national security,” according to a letter National Intelligence Director Michael McConnell sent to Martin on Tuesday.

— FCC won’t probe disclosure of phone records, By Reuters, October 6, 2007, 4:00 PM PDT

It seems unlikely the FCC will investigate active wiretapping, either. National security: the root password to the Constitution.

But Congress won’t let the telcos off the hook, well, not completely:

House Democrats have refused to submit to Bush administration requests to save telecommunications companies that assisted in a warrantless wiretapping scheme from lawsuits or prosecution, and they want to require judicial approval for future efforts to spy on Americans.

…

Under the new law, the Attorney General or Director of National Intelligence would be authorized to receive blanket warrants to eavesdrop on several foreign intelligence targets who could call into the United States, but the bill would restore FISA court reviews of targeting procedures and steps taken to “minimize” Americans’ exposure to surveillance. If an American is to become the “target” of surveillance, intelligence agencies would be required to seek an individualized warrant from the FISA court.

— Proposed FISA update would not give telecom companies legal protection, by Nick Juliano, RawStory, Tuesday October 9, 2007

The Foreign Intelligence Surveillance Court already is so secretive that although its court rules say it has a seal, there’s no image of it available anywhere on the web that I could find, and it already lets intelligence agencies apply within a few days for retroactive authorization for wiretaps.

Of course, this bill would have to pass the Senate and get signed by the president or get enough votes to override a veto. But at least the former law didn’t retroactively immunize the telcos, and this bill doesn’t, either.

-jsq

700Mhz Owners and Uses: Public Safety Counts, Too

700owners.gif There are other issues in 700Mhz spectrum allocation than AT&T’s bottom line:
“It is a life or death issue,” said Harold Hurtt, Houston Chief of Police and President of Major Cities Chiefs, an organization that represents 63 of the nation’s largest police organizations. Hurtt made his comments in a video interview distributed during the Association of Public-Safety Communications Officials (APCO) International 71st annual convention in Denver.

— 700 MHz On The Line by samc, dailywireless.org, Monday, September 5th, 2005 at 1:00 pm.

And some of that spectrum has already been allocated. AT&T just cherrypicked the biggest previous 700Mhz spectrum holder, Aloha Partners, but there are more than a dozen others. Don’t be surprised if some of those get gobbled up, too.

-jsq

AT&T Goes Around FCC with Aloha 700Mhz

aloha.jpg Why wait for the auction when there’s another way?
AT&T announced today that it has purchased 12MHz of spectrum in the prime 700MHz spectrum band from privately-held Aloha Partners for close to $2.5 billion. Aloha purchased the spectrum in Federal Communications Commission auctions held during 2001 and 2003, but hasn’t done much with the licenses since the auctions ended.

The licenses to the spectrum cover around 196 million residents of the US and 72 of the 100 largest metropolitan areas, including the ten largest markets in the US. AT&T isn’t divulging much in the way of specifics for the bandwidth, other than saying that the company will use it for voice, data, and video. “Aloha’s spectrum will enable AT&T to efficiently meet this growing demand and help our customers stay connected to their worlds,” said Forest Miller, AT&T’s group resident for corporate strategy and development.

— AT&T surprises with beachfront 700MHz spectrum purchase By Eric Bangeman, ars technica, October 09, 2007 – 12:29PM CT

And since Aloha got this batch of 700Mhz spectrum in a previous auction with no open access strings attached, AT&T can thumb its nose at Google about that. For the particular geographical locations that Aloha covers.

-jsq

Google v. Verizon v. FCC + Lobbyists

lock.png Verizon is suing the FCC about the watered down rules the FCC passed recently. Now Google has filed a complaint with the FCC about that. And apparently Verizon has been having private meetings with FCC Chairman Kevin Martin. Could this be one source of the illegal leaks the GAO finds the FCC providing to lobbyists?
While Verizon’s court case proceeds through the legal system, the company’s competitors have grown unhappy with the way that Verizon has handled its FCC lobbying. Frontline Wireless has gone so far as to ask the FCC to bar Verizon from the auction because Verizon has allegedly not disclosed some of its lobbying contacts with the agency quickly enough or in enough detail.

Despite Verizon’s reticence to spell out exactly what it has been talking about with FCC Chairman Kevin Martin in private meetings, Google believes that it has pieced the conversation together. Google’s understanding is that Verizon wants the FCC to impose the open access requirements only on the network, not on the devices. That is, Verizon could still sell handsets that are locked and controlled by the company, but its network would have to be open to unlocked handsets from any operator.

According to Google’s new public statement on the issue, “From our perspective, this view ignores the realities of the U.S. wireless market, where some 95 percent of handsets are sold in retail stores run by the large carriers. More to the point, it is simply contrary to what the FCC’s new rules actually say.” Those rules focus on customer freedom to access content and applications from any device.

In a filing with the FCC, Google asks the agency to stick to its original plan. The company points out that while the open access rules might make the spectrum less attractive to Verizon (and thus might bring in less money at auction), the rules actually make it “more attractive, not less” to Google.

— Google attacks Verizon’s attempt to water down 700MHz “open access” rules, By Nate Anderson, ars technica, October 04, 2007 – 11:11AM CT

Silly Google! Verizon is part of the incumbent duopoly, and you’re not!

-jsq

FCC: Media Consolidation in November

coppshi_1.jpg Last year the FCC rushed through approval of the AT&T-Bellsouth merger at the last minute in December before the new Congress was convened in January. This year the rush is on reducing ownership of the majority of media in the U.S. from 50 owners to 5 in the past two decades wasn’t enough already.
The Federal Communications Commission is responding to critics’ complaints that the agency isn’t giving them enough time to examine the scientific studies prepared for the agency’s media ownership review.

The FCC’s Media Bureau today extended the deadline for comment by three weeks, citing the request of Free Press, Consumers Union and the Consumer Federation of America.

Nearing the end of its examination of media ownership rules, the FCC on July 31 released 10 studies of various issues of media consolidation and indicated they could help form the basis of any rule changes. The studies included examinations of the impact of consolidation on news content, opinion, advertising and programming and also looked at minority ownership trends.

FCC Extends Deadline for Comments on Media Ownership Studies, By Ira Teinowitz, TV Week, September 28, 2007

Various groups complained, so the FCC made an extension:
The FCC said comments that were to have been filed by Oct. 1 now may be filed through Oct. 22, with responses now due by Nov. 1.
That’s right: three more weeks to study an issue that will affect news, politics, government, and, well, basically everything for the indefinite future. Or, to be more specific, to study studies picked by the FCC.

Some observers are relatively confident of concessions, apparently not taking into account that some previous concessions have already fallen by the wayside: Continue reading →

Net Neutrality Won’t be Fixed by Anti-Trust: B. Cherry

CherryTPRC2007p13.gif At TPRC Sunday, Barbara Cherry walked through the evolution of bodies of law in the U.S., and made some fascinating observations, including:
  • Net neutrality is a manifestation of moving from a Title II industry-specific business legal regime under the Communications Act of 1934 to a Title II-based regime and greater reliance on a general business regime of antitrust and consumer protection laws, as the FCC did in August 2005 for wireline broadband access service to the Internet and in 2002 for cable modem access service.
  • Simply mMoving among traditional and deregulatory legal regimes for transportation carriers does did not strip common carriage status; it merely changesd the legal overlay that enforcesd it.
  • FCC stripping broadband of common carriage was a radical departure: nothing classified as common carrier has ever been declassified before.
  • Anti-trust doesn’t automatically cover problems from previously addressed in the Title II industry-specific regime when a business is moved to the Title II general business regime. Anti-trust needs modification to do this.
  • Liability is also different between regimes. Without tariffs some legal protections for limited liability constraints are gone, and common carriers are now potentially fully liable for damages. The final filed rate doctrine should have no applicability to a detariffed world.
The above is, I think, a reasonably close paraphrase of some of her points.

I infer from this that the economists and politicians and telco and cableco executives who say that we shouldn’t regulate because we don’t know what will happen and anti-trust will catch problems if they occur are not taking into account that anti-trust doesn’t automatically apply to or address problems in the new legal regime into which broadband has been thrust.

In other words, people see things in the context of what they know, and economists don’t usually know about legal evolution.

Telco and cableco executives, on the other hand, may well have business and political reasons for claiming there’s no need for regulation, whether or not they know that existing anti-trust law is inadequate. doesn’t apply.

You can’t have markets without some form of property rights of contract law. There is also basic legal infrastructure you need for communication infrastructure.

I see little or no understanding of these points in FCC, FTC, or Congress.

Prof. Cherry’s whole paper is well worth reading: Consumer Sovereignty: Redrawing the Boundaries Between Industry-Specific and General Business Legal Regimes for Telecommunications and Broadband Access Services, by Barbara A. Cherry, TPRC, 30 Sep 2007

-jsq

PS: Markup for increased accuracy kindly supplied by Prof. Cherry.

Benton, Universal Service, TPRC, Social Contract

bentonfoundation.png Many good papers on aspects of universal service at the Benton Universal Service Project:
As Congress and the FCC put universal service reform at the top of its telecom policy agenda, the Benton Foundation is supporting a series of papers advancing a new vision for Universal Service — for making broadband as universal as telephone service is today and a pathway for retaking the lead as a broadband leader. This project outlines the policy rationale, the pathway forward, and the 12 key steps for advancing universal broadband and modernizing the universal service program for the information age.
Many of the authors of the papers are on a panel this afternoon at TPRC, including topicssuch as
The social contract implicit in telephony universal service versus the social contract implicit in broadband universal service.
Hm, maybe Verizon could learn from that one?

-jsq

Content Protect v. Internet Freedom

content_protection.png Here’s another view of what the telcos and cablecos have in mind for us, or, rather, what they want in our minds: approved content. This is substantially different from the Internet freedom we have today to look at whatever we want to and to publish our own content.

Remember:

AT&T Inc. has joined Hollywood studios and recording companies in trying to keep pirated films, music and other content off its network — the first major carrier of Internet traffic to do so.
Get ready for the Amazon Channel or settle for Internet Base Service. Continue reading →

Verizon Sues FCC

vzpetition.jpg Well, even though the FCC only provided half-measures to open up the 700Mhz market, Verizon thinks that’s too much and is suing the FCC because it partly unlocked cellphones:
Verizon Wireless seeks judicial review on the grounds that the Report and Order exceeds the Commission’s authority under the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, eg. seq., violates the United States Constitution, violates the Administrative Procedure Act, 5 U.S.C. § 701 et. seq., and is arbitrary capricious, unsupported by substantial evidence and otherwise contrary to law.

— Verizon Wireless v. FCC, Case No. 07-1359, U.S. Court of Appeals, D.C. Circuit, 10 Sep 2007

Curious how the burden of proof always seems to be on anybody but the telcos and cablecos. I mean, didn’t the FCC get the memo that it was only supposed to do anything if somebody proved market failure?

-jsq

PS: Seen on SavetheInternet.com