The Federal Communications Commission's 700MHz auction is done. It was the biggest auction of publicly owned spectrum ever. The winner is Verizon Wireless. The company spent about 9 billion bucks to purchase six "beachfront" quality spectrum licenses that will give the cell phone giant access to a national broadband market, including Hawaii. Because they purchased spectrum on the so-called "C-Block" of the sale, they will have to open their service to any consumer application. But they're also going to have to put a lot more money into this very expensive new frontier, and they're going to have to do it in what promises to be a nasty recession. That is probably why Goldman Sachs called Verizon's bid potentially risky.

The FCC could not sell off its D-Block, the 10MHz swath of spectrum that came with a large public interest requirement—the winner will have to share the license area with a national public safety broadband service. The goal is to create a huge interoperable communications region for the nation's public safety agencies (fire, police, and medical). But nobody offered the FCC's minimal asking price. So the agency says that it will "delink" the D zone and try to figure out why the bidders wouldn't go for the region and how to get them to.

The good folks over at the Media Access Project (see below) had some guarded praise for the auction. The auction raised a lot of money, they said, thanks to anonymous bidding. Some smaller companies like Echostar got in on the game. Then there's the promise of the C-Block, however that plays out.

But here are some things that the FCC did not do with the the 700MHz region, made available by the end of analog television.

The FCC did not give any spectrum away.

They could have, you know. They could have given licenses away to non-profits, universities, rural cooperatives, Native American reservations, what have you, to offer a wide variety of non-profit based, educationally based, community based services that market oriented entities won't. Sure, it would have deprived the government of money to do this; but it also would have extended resources to people and groups that never get access to this kind of stuff. Guess how many women owned firms won spectrum in this auction? Zero. Guess how many minority owned firms won it? Less than one percent.

The FCC did not establish any public interest parameters for the spectrum

Throughout the deliberations over how to run this auction, a company called M2Z proposed setting aside a big piece of the spectrum for a commercially based, free broadband service that filtered out pornography. The FCC rejected the idea, but not until after a long period of deliberation. Hundreds of organizations, community leaders, and even United States Senators endorsed the M2Z concept.

So don't tell me that setting any public interest guidelines for spectrum isn't possible, or that nobody wants it. Congress could have empowered the Commission to do all kinds of things with the spectrum. They could have required a block of it to go to non-commercial broadband services, or to services that at least adhere to the agency's minimal enhanced underwriting rules for broadcasters. What else? You fill in the blanks.

Congress did not earmark any of the money for public interest purposes

They could have set aside a percentage of that money for public broadcasting, for community radio and television, for minority broadcasters. Hell, it was over 19 billion dollars. THREE percent of that would have meant over half a billion bucks for all kinds of worthy projects.

They did none of this because none of this is discussable in the present political climate. Even most of the good guys don't discuss it. It is a whole world of possibilities completely off the political and philosophical table—for now.

March 20, 2008
For Immediate Release

STATEMENT OF MEDIA ACCESS PROJECT IN RESPONSE TO 700 MHZ AUCTION RESULTS.

The following statement may be attributed to Harold Feld, Senior Vice President, Media Access Project:

This auction proves two things. First, anonymous bidding works. Second, that auctions alone will not bring competition to the wireless world or break the current cable/DSL broadband duopoly.

On the positive side, Echostar -- which had been blocked by the cable consortium Spectrum Co. in the last major FCC auction, won a substantial number of E Block licenses, which will increase its competitive position against cable. The 700 MHz Auction also proved a financial success, bringing in more money than any other FCC auction. Both of these positive results come from the FCC's decision to adopt anonymous bidding -- which prevented blocking by rivals or collusion to reduce prices.

On the other hand, this auction also proves that major incumbents will always be able to win if they spend enough. The advantages an incumbent enjoys -- already having a network, customers, and name recognition for example -- give it enough of an edge to win every time. For Americans to see real competition in the wireless world, Congress and the FCC must rethink the reliance on auctions and return to spectrum caps or other means to limit the power of the existing wireless oligopoly.

Finally, although the open device condition on C Block will help to move Verizon and the rest of the industry in the direction of open networks, the auction failed to establish a genuine broadband "third pipe." In many ways, however, this failure is good news. With the distraction of a wireless broadband third pipe behind us, policymakers can turn their attention to real solutions for the problem of the cable/DSL duopoly that subjects Americans to high prices, slow speeds, and poor service.

In what was undoubtedly the most equal and fairest FCC auction ever held, the incumbents still won the lion's share of licenses. But at least, thanks to anonymous bidding, they paid market value.

There's is so much stuff going on at the Federal Communications Commission this week that I can't throw a stick at it. But I'll try.

Supremes to consider fleeting expletives

The Supreme Court has agreed to reconsider the Second Circuit Court of Appeals' strikedown of FCC fines for  so-called "fleeting expletives." To recap, the Commish smacked Fox TV in 2006 for potty mouthed celebrity comments made during the 2002 and 2003 Billboard Music Awards.

Here are the crimes in question:

The 2002 Billboard Music Awards: "People have been telling me I'm on the way out every year, right? So fuck 'em." -Cher

The 2003 Billboard Music Awards: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." -”Nicole Richie

The FCC insisted that even though these words were said on the fly, they still represented "titillating" and "shocking" language. But New York's Second Circuit Court of Appeals called that stupid. In fact, in June of that year they characterizd the decision as "divorced from reality."

"In recent times," the court observed, "even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced 'sexual or excretory organs or activities' [as the FCC has delicately put it]." The judges pointed out that even the nation's highest officials have used such language without anyone sprouting wood.

The Second cited two examples: President Bush's inadvertently televised remark to British Prime Minister Tony Blair that the United Nations needed to "get Hezbollah to stop doing this shit" and Vice President Dick Cheney's "widely-reported 'Fuck yourself' comment to Senator Patrick Leahy on the floor of the U.S. Senate."

FCC Chair Kevin Martin hurled some expletives himself following the Second Circuit's decision.

"I completely disagree with the Court's ruling and am disappointed for American families," Martin explained in a statement published on the FCC's Web site. "I find it hard to believe that the New York court would tell American families that 'shit' and 'fuck' are fine to say on broadcast television during the hours when children are most likely to be in the audience."

So Martin appealed to the Supreme Court, and here we are.

Broadband madness

The FCC reported today that high speed Internet lines in the United States jumped by 55 percent in a twelve month period ending in June 2007, but who cares? The Commission's definition of high speed is a joke: over 200 kilobits per second in one direction (uploads or downloads). "Advanced services lines" is also a gag, defined at over 200 kbps in both directions. Even FCC Chair Martin thinks this is laughable. He appeared at Stanford a couple of weeks ago and called these standards "woefully inadequate" and "not reflective of what the technology is expecting in terms of broadband deployment." Martin told the Stanford audience that he has proposed raising the bar to 768kpbs for basic broadband, and 1.5Mbps for an advanced service connections.

But the Commission did do something nice for apartment dwellers today. It ruled that telcos can't set up exclusive deals with apartment buildings. Last November it did the same with cable service. Now telecommunications service providers can't make tenements contract with one just one telco. "Exclusive contracts have blocked access by consumers to competitive and
popular 'triple-play' offerings of voice, video and broadband," the Commission declared "Opening the door to competitive telecommunications services will help provide consumers with increased access to and choice of such providers."

Plus the Order establishes "regulatory parity between telecommunications and video service providers in the increasingly competitive market for bundled services." I just love it when the FCC uses words like 'regulatory parity.' It makes them sound so tough.

Left coast net neutrality showdown

Oh yeah: the FCC will be holding yet another hearing on what Comcast calls 'network management practices' and what P2P uses call crude blocking of their attempts to share files. The last one took place at Harvard on February 25th and I covered it for Ars Technica. Quite a slug fest. Apparently Comcast paid people from the street to pack the meeting in order to keep folks actually interested in the issue out. That will be a bit more difficult act to pull off at Stanford, I think, where the next gathering will occur. The Palo Alto campus is not exactly the kind of place where you can just walk in off the street. Anyway, April 17th is the day for the big event.

Let's see. Wuddelse? Last point: It should bear mentioning that if the Supreme Court rules on the "fleeting" case this year, it will happen on the 30th anniversary of Pacifica versus FCC, the 5 to 4 decision that launched the agency's indecency rampage. The Supremes have a chance to nip this lunacy in the bud. Let's hope they stay consistent with their pro-corporate stance and side with Fox TV (this is the only time you'll ever read me siding with Fox folks, so savor the moment).

Now that I'm blogging about the Federal Communications Commission for Allvoices on a regular basis, I think it's time to explain how the FCC makes decisions, and how you can file a comment with the Commission. That way I can always refer to this page when I'm describing an FCC related issue that asks for public input.

When the FCC wants to make a new rule or a new set of rules, it often goes through three stages. First it issues a Notice of Inquiry (NOI) to the public. The purpose of the NOI is simply to gather information about the general problem that the FCC seeks to solve. The FCC has issued inquiries on everything from satellite orbit distances to how to protect birds from electrified wireless towers.

After enough people have commented, the FCC will frequently issue a Notice of Proposed Rulemaking (NOPR). The NOPR proposes specific rules or regulations to solve some problem or conflict, and it often goes through two stages.

First the FCC allows the public to comment on the proposal for a fixed amount of time - usually from thirty to ninety days. Then the Commission allows the public to reply to comments for a similar period. The agency's five Commissioners also meet with interested parties during this time.

Finally, the Commissioners and their staffs will read all the comments and negotiate with each other. If they can come up with a three person majority, they will issue an Order on the matter. The Order explains the logic behind the decision in some detail, and becomes law unless a party successfully takes it to court, or Congress overrides the decision with their own rules.

That's why it's hard to just write a letter to the FCC on whatever happens to come to your mind. Think of the FCC as a sort of transit depot, full of trains moving in and out of the station. Each train equals a NOI or a NOPR. Like a commuter train, you've got to know when it will arrive and where it is going. Then you can jump on!

The key is identifying the docket number for the right proceeding. As with trains, the FCC gives each proceeding a number when it posts the NOI or NOPR on its Web site (www.fcc.gov). If you know the docket number, just go to the FCC's handy dandy comment form, plug in the docket number in the first text field, and file your comment.

You can either type your comment right into the form, or you can upload a Word, pdf, Excel, or text file that you've produced on your computer.

Unfortunately, the Commission does not do a good job of making it easy to figure out when and where NOIs and NOPRs are going, especially if you don't pay attention to what's happening at the FCC on a regular basis.

So I've started compiling a list of proceeding docket numbers, which you can access at the bottom of this article.

Suggestions for writing effective comments

1. Be nice.

The first thing to remember about filing a public comment with the FCC is that it is public. That means that what you write will be stored in a database accessible to the many lawyers, businesspeople, activists, government officials, and journalists who follow FCC proceedings. In fact, I draw most of the materials on this Web site from public filings.

So in the short run you might find it satisfying to call the FCC a cabal of fascistic/Stalinist/Bush loving/Jesus hating pornographers or whatever, but frankly, nobody at the Commission will take your comment very seriously. And you also could find your comment floating somewhere across the Web. That's why it's better to write something intelligent and assertive rather than nasty and aggressive.

2. Team up.

Magnify the power of your comment by getting three or four of your friends to co-sign. Call yourself something, eg. "the Anytown Committee for Media Reform" or "the Smallville Coalition for Local Radio." You get the idea. Clear Channel and Microsoft do this. Why not you?

3. Make specific suggestions.

Don't just say that you are against something, emphasize what you are for. Try to come up with concrete proposals and observations in your comment. If you think that the FCC should not relax its media ownership rules, what do you think that the FCC should do? What's going on in your community that you can tell the FCC about?

Specific comments are important, because if the FCC, in composing its final Order, ignores a detailed, specific suggestion or observation, any group that appeals the Order to the courts can cite that omission in its petition for relief.

4. Be professional.

If you upload a letter, create a letterhead style document. But remember, if you put your cell phone number or personal email on the top of the document, it's there for everybody to see—and download.

A great example of an individual filing can be found here.

The news media is having a great day with the revelation that New York Governor Eliot Spitzer paid for sex with prostitutes. Behind the scenes, corporate criminals are breaking out the champagne. As Attorney General of the Empire State, Eliot Spitzer championed the consumer and feasted on white collar crooks. Not only that, Spitzer's zeal often forced those around him in government to do their jobs better, whether they wanted to or not.

To cite only one example, in the summer of 2005 Spitzer launched a campaign against radio payola. The smart set had long ago concluded that payola was inevitable. After all, the government had cracked down on it in the early 1960s, and yet here it was still around.

But Spitzer thought otherwise. He announced lawsuits against Sony Records and Entercom Communications Corporation, the latter which owns and operates 105 radio stations on the east coast. The suits charged that the firms' stations solicited payments from record companies for air time, or they traded air time for gifts, promotional items, and personal trips.

Spitzer obtained corporate emails that revealed pay-for-play deals between corporate radio stations and promoters. "Hello Lisa," one email to a promoter began. "I'm writing to confirm WBEE's receipt of a Dell computer, value $2512.08. Thank you again; we enjoyed doing the promotion with you." That exchange was mild in tone compared to correspondence between a Sony station deejay and a promoter. "I'm a whore this week, what can I say?" the jock declares. "You can say I'll give you Franz Ferdinand this week and put it in a 7PM to 6AM rotation with 18 times a week," came the reply.

As Sony, Entercom and two other firms rushed to settle, Spitzer went further. In March of 2006 he held a press conference to denounce the Federal Communications Commission for dragging its heels on the issue. He demanded that the FCC take more aggressive steps against payola.

"The agency's inaction is especially disappointing given the pervasive nature of this problem and its corrosive impact on the entertainment industry," Spitzer said. This kick in the rump obviously worked. A month later the FCC announced an accelerated investigation of the alleged payola practices of four media giants: Clear Channel Communications, CBS Radio, Entercom Communications, and Citadel Broadcasting. A year later the four culprits paid the government $12.5 million in fines. They also agreed to a new set of rules reigning in "pay for play" radio.

"Through this strong enforcement action that we take today," FCC Chair Kevin Martin officiously stated, "the Commission has provided clear guidance to licensees and sent a strong message that the practice of payola must stop for good." But the agency would not have accomplished this had Elliot Spitzer not put the fear of God into the broadcasting industry with his dramatic lawsuit, and made a public issue of the commission's laziness.

Doubtless the occupants of corporate board rooms everywhere watched Spitzers' heartbreaking press conference yesterday and grinned. An arrogant man brought down by the very flaws he decried in others, they are saying to their confidants.

Yes, Spitzer was arrogant, self-righteous, and maniacally ambitious. He needed to be those things to accomplish his work. Nice, self-effacing people do not prevail against corporate crooks and their sleazy lawyers, lobbyists, and thugs. Eliot Spitzers do. I, for one, am not laughing about his demise.

The FCC's payola rules

The government defines "payola" as the undisclosed playing of music over broadcast stations in exchange for money, gifts, or services. On April 13, 2006, CBS radio, Entercom Communications, Clear Channel Communications, and Citadel Broadcasting promised the FCC to:

• prohibit airplay for cash and goods "except under specified conditions [below] "
• put limits on gifts from big broadcasters to company stations
• appoint officers who will monitor compliance with the agreement
• train personnel on how to avoid violations of the new rules

The Consent Agreement did allow the companies the following leeway:

• Stations may ask for and receive a wide variety of on air giveaway items of value, such as CDs or airplane tickets, as long as they broadcast the value of the prizes and their donor.
• Station personnel can solicit and receive up to 20 copies of a CD "to familiarize Company employees with recordings," as well as various kinds of swag, from T-shirts to coffee mugs, as long as the value of each item does not go above $25 and the materials are used at company parties.
• Companies can ask for a receive up to 20 tickets for a single day concert or industry event "to be used by Company employees to familiarize them with the performing Artists."
• Station personnel can receive "modest personal gifts for life event, professional achievement and holidays, or gifts commemorating achievement by Company or a Record Label," as long as the value of the gift does not exceed $150, as far as the employee can tell.
• Station employees can receive meals and entertainment at a single event up to $150 in value "provided that the event is attended by a Record Label employee and has a legitimate business purpose, and any payment is consistent with the value of the meal or entertainment."
• Company stations can receive up to 20 stipends for "reasonable travel and lodging expenses" to industry events, as long as the compliance officer approves of the gift.
• Companies must maintain a database of gifts and favors received by its stations.

Dear Consumer:

You may have heard alarming reports that at some point early next year a whole bunch of TV sets are going to go dark because of the "DTV transition." Please don't worry. No one wants to take your television set away from you, least of all the Bush administration. Here are the facts.

The United States government has set February 17th, 2009 as the last day that television stations may broadcast their signal using the analog method. Analog systems use modulating frequencies to transmit sound and pictures. Digital systems transmit TV signals, well, via digits, complex packets of zeros and ones that get reassembled into video and audio when they reach your television set.

Everybody gets something from digital or "DTV" broadcasting. You'll get better images and sound, with much less interference. Plus DTV transmission will allow TV license holders to broadcast several streams from one signal, a technique called "multicasting." This means that you will have even more channels to choose from, depending on the extent to which cable and satellite companies pick them all up, still a matter of dispute.

In addition, the abandonment of all these analog signals has allowed the Federal government to auction off a huge swath of channel space, or spectrum, earning the United States Treasury billions of dollars which will doubtless be put to excellent use.

The Federal Communications Commission has ruled that all newly manufactured boob tubes have to come equipped with digital tuners. Retailers can still sell analog only equipment, but they've got to include the following warning around the said gear: "This television receiver has only an analog broadcast tuner and will require a converter box after February 17th, 2009, to receive over-the-air broadcasts with an antenna because of the Nation's transition to digital broadcasting. . . . "

Already about 1,600 TV stations broadcast both analog and digital signals. The problem is that millions of Americans, perhaps as many as 21 million, still rely on analog television only. That is, they don't have a digital tuner, or a cable or satellite set top box, which usually picks up a digital signal and translates it into something that their analog TV can receive. They just watch TV using a plain old rabbit ears antenna analog machine.

That means that on midnight, February 17th, 2009, their TV set will become a useless piece of furniture, unless the owner of that receiver acts sooner. That means that somebody has to tell them to act, and how to act. The problem is that a lot of those owners are the least reachable people in our society: the poor, the very elderly, folks in remote rural areas, and people with disabilities. Paradoxically, while many of these individuals depend on television for their primary connection to the outside world, they're going to be the hardest people to get retooled for the digital transition. Among other problems, many of them don't have the money to buy a fancy new digital TV set.

To address the money issue, the Department of Commerce's National Telecommunications and Information Administration (NTIA) has started a Digital-to-Analog Converter Box Coupon Program. Beginning on January 1st, 2008, all Americans became eligible to receive two $40 coupons good towards purchase of a set top box that, plugged into your grandmother's old TV, will convert that digital signal to analog and keep the telly running.

But the challenge will be to a) make grandma aware of the problem, and b) make her, or someone who can help her, aware of the solution. To deal with these public education tasks, the government has budgeted a sum that many critics regard as woefully inadequate, about $5 million for the NTIA, and another $2 million for the FCC. The British, in contrast, have allocated almost $400 million for the job.

NTIA officials defend the relatively low sum earmarked for this task by assuring the public that the private sector—broadcasters, TV manufactures, and retail TV distributors—will take on the burden of educational work. Last summer I attended an FCC Consumer Advisory Committee (CAC) meeting, at which a National Association of Broadcasters official assured the group that this was a top priority for broadcasters, a matter of self-interest, even calling the DTV transition "television's Y2K."

Since then, the FCC has decided to help broadcasters get more enthusiastic about the DTV transition by requiring them to run a schedule of Public Service Announcements and "crawls" (those text lines you see, well, crawling at the bottom of your screen) on a regular basis through this year and next.

Speaking personally, I applied for my two NTIA coupons in early January and still have not received them. But hope springs eternal. One thing is for sure, whatever happens after February 17th, 2009, the Last Day of Analog Broadcasting, President George W. ("You're doing a heck of a job, Brownie") Bush, won't have to answer for it. At least there's that.