It’s Time for FCC/DOJ Inter-Agency Cooperation to Come into the Sunlight…

Posted on by

Over the past several years, there have been numerous efforts to improve the practices and procedures used at the Federal Commissions Commission.  However, of all of the potential improvements bandied about, I submit that there is one improvement that has been entirely overlooked and needs immediately implementation:  that is, the repeal of Section § 1.1204(6) of the FCC’s ex parte rules, which provides that the Commission and the Department of Justice (“DOJ”) can meet in secret as often as they like—without having to file anything into the record about the date of the meeting, who attended the meeting and what Continue Reading »

Will the FCC Exclude Bidders from the Upcoming Voluntary Incentive Auction?

Posted on by

Last year, when Congress was debating the voluntary incentive auction provisions of the Middle Class Tax Relief and Jobs Creation Act, many argued—including FCC outgoing Chairman Julius Genachowski—that the Commission should have the authority to adopt auction participation rules so that it could prevent an “excessive concentration of licenses” under Section 309(j)(3)(B) of the Communications Act.  While Congress did not include any specific auction participation rules in the Middle Class Tax Relief and Jobs Creation Act, Section 6404 of the new legislation states that “Nothing … affects any authority the Commission has to adopt and enforce rules of general applicability, Continue Reading »

Spectrum Exhaust and the Monopolization Narrative…

Posted on by

In a recent speech, outgoing FCC Chairman Julius Genachowski once again reiterated the critical importance of spectrum policy “breakthroughs” to address the “tremendous stress” on the capacity of the nation’s wireless networks “from growing digital demand.”  While Congress and regulators are doing what they can, including addressing tower siting (here and here), reallocating and sharing government spectrum (here and here), and moving forward with the voluntary incentive auctions for broadcast spectrum, these actions represent only partial (and possibly untimely) solutions to spectrum exhaust.  Addressing the problem in the near term will require secondary market transactions for spectrum, where spectrum is Continue Reading »

The Sixteenth CMRS Competition Report: A Paralysis Born in Humility

Posted on by

Each year, Section 331(c)(1)(C) of the Communications Act directs the Federal Communications Commission (FCC) to “review competitive market conditions with respect to commercial mobile services and shall include in its annual report an analysis of those conditions.”  To this end, the agency released its Sixteenth Annual CMRS Report last week.  In this latest report, the FCC makes few formal findings, but instead “focuses on presenting the best data available on competition throughout this sector of the economy and highlighting several key trends in the mobile wireless industry.”  (Sixteenth Report at ¶ 2.)  Consistent with the other CMRS Reports issued under Continue Reading »

New America Foundation Misinterprets International Data (Again)…

Posted on by

In a recent report entitled The Cost of Connectivity, the New America Foundation (“New America”) attempts to compare the prices of “triple play” offerings of video, phone, and Internet services across 22 cities worldwide to show that “that U.S. consumers in major cities tend to pay higher prices for slower speeds compared to consumers abroad.”  Unfortunately, when it comes to measuring and comparing prices, New America has a demonstrated penchant for careless work.  Upon inspection, New America’s new study appears to be unexceptional in that regard—the empirics are sloppy and the conclusions are unsupported.  In fact, New America presents evidence Continue Reading »

Copyright and Wireless Carterfone (Part Deux)…

Posted on by

Last month, I authored a blog discussing the Librarian of Congress’s recent decision not to exempt handset unlocking of new phones from the anti-circumvention petitions of the Digital Millennium Copyright Act (“DMCA”).  Since that blog was posted, copyright-reform activists launched an on-line campaign to have the White House “ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.”  Last week, in a post by R. David Edelman, Senior Advisor for Internet, Innovation Policy, entitled It’s Time to Legalize Cell Phone Unlocking, the White House joined in the dispute stating: The Continue Reading »

Is there a “Silver Lining” of Sequestration?

Posted on by

Friday, absent Congressional and Presidential action, the Budget Control Act’s Sequester kicks in, forcing across-the-board spending cuts of $1.1 trillion spread out over nine years, with $85 billion cuts coming in 2013.  Without question, this reduction in federal spending will impact the economy, particularly as we measure it.  Government spending is a component of aggregate demand, and reduced demand in the economy will have its consequences.  Also, government spending is a component of Gross Domestic Product (about 23% of it), and since recessions are indicated (in part) by declining GDP, a cut in federal spending increases the probability of an Continue Reading »

The FCC Contradicts Their Facts (Again) To Justify Expanded Broadband Regulation…

Posted on by

Last year, we released a paper entitled Justifying the Ends:  Section 706 and the Regulation of Broadband (and forthcoming, Journal of Internet Law) where we demonstrated how the Federal Communications Commission deliberately ignored its own evidence to support expanded regulatory jurisdiction over IP-based services.  With the release of its new Measuring Broadband America Report last week, the FCC once again undermines its factual predicate for Internet regulation.  Let me explain. Over the last several years, we have seen the Federal Communications Commission put forth a rather clever argument to expand its regulatory authority over broadband services.  Under Section 706(a) of Continue Reading »

The Misuse of International Broadband Rankings Continues…

Posted on by

According to a just-released report by the Information Technology & Innovation Foundation (ITIF) entitled The Whole Picture:  Where America’s Broadband Networks Really Stand, “Despite the frequent claims that the United States lags in international broadband comparisons, the studies cited to support this claim are out-of-date, poorly-focused, and/or analytically deficient.”  We couldn’t agree more, and extend our kudos to Richard Bennett, Luke Steward, and Rob Atkinson for a thorough and dispassionate analysis of broadband deployment and adoption across developed economies.  Indeed, I suspect ITIF’s report will become the ”go to” document of the most current basic statistics on where the U.S. Continue Reading »

Copyright and Wireless Carterfone…

Posted on by

Recently, a renewed interest in long-term contracts and the practice of locking handsets to networks has emerged from an unlikely source:  Copyright law. Making a very long and complicated story short, under Section 1201(a)(1)(A) of the Digital Millennium Copyright Act (DMCA), it is unlawful to circumvent certain technological measures employed by or on behalf of copyright owners to protect their works.   That said, copyright law always embeds some balance between owner and user, and Section 1201(a)(1)(B) limits the prohibition for subsection (A) by exempting those persons who are “adversely affected by virtue of such prohibition in their ability to make Continue Reading »