I’ve written several articles in the last few weeks critical of the dangerously unprincipled turn at the Federal Communications Commission toward a quixotic, political agenda. But as I reflect more broadly on the agency’s behavior over the last few years, I find something deeper and even more disturbing is at work. The agency’s unreconstructed view of communications, embedded deep in the Communications Act and codified in every one of hundreds of color changes on the spectrum map, has become dangerously anachronistic.
The FCC is required by law to see separate communications technologies delivering specific kinds of content over incompatible channels requiring distinct bands of protected spectrum. But that world ceased to exist, and it’s not coming back. It is as if regulators from the Victorian Age were deciding the future of communications in the 21
st century. The FCC is moving from rogue to steampunk.
With the unprecedented release of the staff’s draft report on the AT&T/T-Mobile merger, a turning point seems to have been reached. I wrote on
CNET (see “FCC: Ready for Reform Yet?”) that the clumsy decision to release the draft report without the Commissioners having reviewed or voted on it, for a deal that had been withdrawn, was at the very least ill-timed, coming in the midst of Congressional debate on reforming the agency. Pending bills in the House and Senate, for example, are especially critical of how the agency has recently handled its reports, records, and merger reviews. And each new draft of a spectrum auction bill expresses increased concern about giving the agency “flexibility” to define conditions and terms for the auctions.
The release of the draft report, which edges the independent agency that much closer to doing the unconstitutional bidding not of Congress but the White House, won’t help the agency convince anyone that it can be trusted with any new powers. Let alone the novel authority to hold voluntary incentive auctions to free up underutilized broadcast spectrum.
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On NPR’s Marketplace this morning, I talk about net neutrality litigation with host John Moe.
Nearly a year after the FCC passed controversial new “Open Internet” rules by a 3-2 vote, the White House finally gave approval for the rules to be published last week, unleashing lawsuits from both supporters and detractors.
The supporters don’t have any hope or expectation of getting a court to make the rules more comprehensive. So why sue? When lawsuits challenging federal regulations are filed in multiple appellate courts, a lottery determines which court hears a consolidated appeal.
So lawsuits by net neutrality supporters are a procedural gimmick, an effort to take cases challenging the FCC’s authority out of the D.C. Circuit Court of Appeals, which has already made clear the FCC has no legal basis here.
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Last week the Senate Commerce Committee passed–with deep bi-partisan support–the Public Safety Spectrum and Wireless Innovation Act.
The bill, co-sponsored by Committee Chairman Jay Rockefeller and Ranking Member Kay Bailey Hutchison, is a comprehensive effort to resolve several long-standing stalemates and impending crises having to do with one of the most critical 21st century resources: radio spectrum.
My analysis of the bill appears today on CNET. See “Spectrum reform, public safety network move forward in Senate.”
The proposed legislation is impressive in scope; it offers new and in some cases novel solutions to more than half-a-dozen spectrum-related problems, including: Continue reading →
For CNET this morning, I write about the latest tempest in the AT&T/T-Mobile USA merger teapot: cellular backhaul or “special access” as its known in the industry.
Like a child sitting on Santa’s lap at the mall, Sprint CEO Dan Hesse included backhaul in his wish list of conditions he’d like to see attached to the deal. Yesterday, Public Knowledge duly confirmed that yes, backhaul is a “multiplier” problem for the deal.
(Sprint says they would like the deal blocked, but that is mere posturing. What they really want is to use the FCC’s bloated and unprincipled merger review process to sneak in as many private concessions for themselves as they can get. And who can blame them for trying? More on that in a moment.)
For those who don’t know, backhaul is the process of moving cellular traffic (voice and data) to other high-speed networks (traditionally landline copper but now including cable, fiber, microwave and local Ethernet) to transport them to their ultimate destination. As mobile use increases, of course, the necessity of reliable, high-speed backhaul to keep overall performance up becomes more critical than ever.
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For Forbes.com this morning, I take a close look at last month’s controversial FCC order requiring facilities-based wireless carriers to negotiate data roaming agreements with other carriers.
There are business, technical, and legal reasons why the order stands on unsteady ground, which the article looks at in detail.
The order, by encouraging artificial competition in nationwide mobile broadband, could also undermine arguments against AT&T’s merger with T-Mobile USA.
How so? If every regional, local, or rural carrier can offer their customers access to the nationwide coverage of Verizon, AT&T, or Sprint, on terms overseen for “commercial reasonableness” by the FCC, what’s the risk of consumer harm from combining AT&T and T-Mobile’s infrastructure? Indeed, doing so would create stronger nationwide 3G and 4G networks for other carriers to use. In that sense, it’s actually pro-competitive, and a pragmatic solution to spectrum exhaustion. Continue reading →
On Forbes
this morning, I analyze the legislative and judicial challenges to last year’s FCC Open Internet rules, the so-called net neutrality order.
Despite the urgency of Friday’s budget machinations, the House took time out to pass House Joint Resolution 37, which “disapproves” the FCC’s December rulemaking. If passed by the Senate and not vetoed by President Obama, HJR 37 would effectively nullify the net neutrality rules, and ensure the FCC cannot pass alternate versions of them absent new authority to do so from Congress.
Most commentators believe that the House action was merely symbolic. Passage in the Senate requires only a simple majority, but the neutrality fight has turned violently partisan since the mid-term elections and getting a few Democratic Senators on-board may be hard. More to the point, the White House last week pre-emptively threatened to veto the resolution.
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In my latest Forbes column, “Keeping The Video Revolution Going Strong,” I argue that we’ve been blessed to live through a veritable information revolution but that “many scarcity-era regulations remain on the books and threaten this ongoing revolution — especially in the video marketplace. So long as Washington continues to enforce regulations dating to the days of I Love Lucy, the old regulatory norms and edicts threaten to roll over onto emerging video technologies, stifling innovation and consumer choice.”
I go on to briefly discuss a few flashpoints in the ongoing video wars, including: the fights over “retransmission consent,” so-called “AllVid” tech mandates, and the broader battle to liberalize spectrum. “While the video revolution will hopefully continue apace, a light-touch from Washington will be essential to keep it going strong,” I conclude. “To the extent policymakers are looking to ‘level the (regulatory) playing field’ between the old and new video worlds, they should do so in the direction of freer markets, not more tech mandates.”
Anyway, read the whole thing over at the Forbes site.
What I hoped would be a short blog post to accompany the video from Geoff Manne and my appearances this week on PBS’s “Ideas in Action with Jim Glassman” turned out to be a very long article which I’ve published over at Forbes.com.
I apologize to Geoff for taking an innocent comment he made on the broadcast completely out of context, and to everyone else who chooses to read 2,000 words I’ve written in response.
So all I’ll say here is that Geoff Manne and I taped the program in January, as part of the launch of TechFreedom and of “The Next Digital Decade.” Enjoy!
We’ve said it here before too may times to count: When it comes to the future of content and services — especially online or digitally-delivered content and services — there is no free lunch. Something has to pay for all that stuff and increasingly that something is advertising. But not just any type of advertising — targeted advertising is the future. We see that again today with Skype’s announcement that it is rolling out an advertising scheme as well as in this Wall Street Journal story (“TV’s Next Wave: Tuning In to You“) about how cable and satellite TV providers are ramping up their targeted advertising efforts.
No doubt, we’ll soon hear the same old complaints and fears trotted out about these developments. We’ll hear about how “annoying” such ads are or how “creepy” they are. Yet, few will bother detailing what the actual harm is in being delivered more tailored or targeted commercial messages. After all, there’s actually a
benefit to receiving ads that may be of more interest to us. Much traditional advertising was quite “spammy” in that it was sent to the mass market without a care in the world about who might see or hear it. But in a diverse society, it would be optimal if the ads you saw better reflected your actual interests / tastes. And that’s a primary motivation for why so many content and service providers are turning to ad targeting techniques. As Skype noted in its announcement today: “We may use non-personally identifiable demographic data (e.g. location, gender and age) to target ads, which helps ensure that you see relevant ads. For example, if you’re in the US, we don’t want to show you ads for a product that is only available in the UK.” Similarly, the Journal article highlights a variety of approaches that television providers are using to better tailor ads to their viewers.
Some will still claim it’s too “creepy.” But, as I noted in my recent filing to the Federal Trade Commission on its new privacy green paper: Continue reading →
Following up on my Congressional testimony last week, I’ve written two articles on how the House and Senate are moving forward with plans to undo the FCC’s December 23,2010 “Open Internet” order, aka net neutrality. For my inaugural post for Forbes, I write about the experience of being a witness before the House Judiciary Committee’s Subcommittee on Intellectual Property, Competition and the Internet, and provide some background on how the FCC found itself backed into a corner that led to the unpopular (on both sides) new rules. See “Deep in the Net Neutrality Trenches.”
On CNET this morning, I review in detail the steps taken last week by Congress. These include two hearings, one featuring all five FCC Commissioners. After the hearings, the House approved an amendment to the on-going budget negotiations that would deny the agency any funding to implement or enforce its rules. Later, both the House and Senate issued a Joint Resolution of Disapproval, which, if passed, would nullify the rule-making and deny the FCC future authority to try again. Continue reading →
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