House Energy & Commerce Committee

The House Energy and Commerce Committee plans to hold a hearing Friday to review the Federal Communications Commission’s actions regarding the now-bankrupt wireless firm LightSquared, which proposed a nationwide 4G network later found to create major interference problems for GPS users.

At issue are the circumstances surrounding the conditional waiver the company received from the FCC to move forward with its network in 2011. Some Republicans are questioning whether the FCC rushed the approval process without independently assessing whether LightSquared would interfere with GPS services located on nearby frequencies.

The hearing, requested by the Republican majority, will explore whether the FCC skipped its own procedures and ignored policy to hurry approval.

Sen. Charles Grassley (R-Iowa) has raised questions about the FCC and LightSquared owner Philip Falcone, who has donated nearly $100,000 to the Democratic Party.

“Without transparency, and with media coverage of political connections in this case, there’s no way to know whether the agency is trying to help friends in need or really looking out for the public’s interest,” Grassley said last September after unsuccessfully trying to get the FCC to pass along documents regarding the venture.

The Center for Public Integrity found numerous political connections between LightSquared and the Democratic Party:

• Several major Democratic campaign contributors and longtime Obama supporters have held investments in the company and its affiliates during its tangled decade of existence. They include Obama’s good friend and political donor Donald Gips, his former White House personnel chief, who now serves as U.S. ambassador to South Africa. Records show that Gips maintained an interest, worth as much as $500,000, as the FCC was weighing LightSquared’s request.
• Obama himself was an early investor and came to the presidency a firm believer in expanding broadband. He remains close to other early investors, like Gips and investment manager George W. Haywood, inviting some to luxe social events at the White House and more intimate gatherings like a night of poker and beer.
• Obama installed one of his biggest fundraisers, Julius Genachowski, a campaign “bundler” and broadband cheerleader, as chairman of the FCC, whose staff granted LightSquared a special waiver to operate.
• LightSquared’s current majority owner, hedge fund manager Philip Falcone, made large donations to the Democratic Party while his broadband request was pending before the FCC. He and LightSquared executives met with White House officials. Neither Falcone nor the White House would comment on what was discussed.
• LightSquared employs lobbying firms that wield formidable Democratic firepower: Ed Rendell, former governor of Pennsylvania and onetime chair of the Democratic National Committee, as well as the firm of former House Majority Leader Richard Gephardt.
• Jeffrey J. Carlisle, the company’s vice president for regulatory affairs, served with Genachowski and Gips on Obama’s transition team.

With nearly $3 billion sunk into the venture by hedge fund owner Falcone and his backers at Harbinger Capital, fierce lobbying pressure was applied to win the conditional FCC waiver, granted by the FCC before it reviewed comprehensive reports affirming interference problems.

When independent tests showed LightSquared’s service would overwhelm sensitive GPS receivers and render the location-tracking service nearly useless, last February the agency withdrew its permission for LightSquared to operate, beginning a death spiral for the 4G venture, which filed for bankruptcy in May.

The Federal Communications Commission today approved a request from the National Cable and Telecommunications Association (NCTA), the chief cable industry lobbying group, that will allow cable operators to acquire competing phone companies under certain circumstances, which the Commission says will increase competition.

“Acquisitions of competitive [phone companies] by cable operators often will strengthen facilities-based competition for telecommunications services, which will in turn provide customers with better service and functionality and lower prices,” the Commission ruled.

The FCC theorizes that when a community is served by two (or more) telephone companies, there will be no degradation in competition if the local cable operator acquires one of them. The Commission suspects most cable operators seek out competing phone companies that target business customers for commercial telephone service. The FCC believes that such acquisitions will enhance the cable company’s competing phone service. That, in turn, will theoretically force the dominant phone company to lower its prices to compete with a strengthened cable competitor.

But officials from Montgomery County, Maryland thought some of the FCC’s logic was short-sighted, noting cable companies have been substantially boosting investments in commercial services on their own, without buying the competition. Montgomery County officials worry the unintended consequence of fewer players in the market could be higher prices for residential customers:

“With this level of growth in commercial services revenues by cable companies, any new cable-[telco] merger might reduce competition by merging two competitors rather than “injecting” competition in a local marketplace as the [NCTA] claims,” the county’s legal team wrote. “And the impact on the local residential marketplace of any cable-[telco] merger can only serve to lessen competition for residential customers as the cable companies already are dominant wireline providers in their local residential markets. Thus, a declaratory order will not necessarily promote competitive market conditions at all, and could in fact facilitate a substantial decrease in competition.”

AT&T has sent the Federal Communications Commission a bait and switch checklist that, despite the stated purpose of modernizing telecommunications networks, would also allow the company to completely abandon its landline network and win near-complete deregulation of its broadband service.

On Tuesday, August 28, Christopher Heimann and I met with Matthew Berry and Nicholas Degani, respectively Chief of Staff and Legal Advisor to Commissioner Pai, to discuss actions the Commission can and should take to facilitate the retirement of legacy TDM-based networks and services and transition to an IP-based Network/Ecosystem, consistent with federal policies and objectives, including those enunciated in the National Broadband Plan.

At the request of Commissioner Pai, AT&T has prepared and is submitting herewith a checklist of those actions, which identifies the critical first steps the Commission should undertake without delay to begin the transition as well as additional steps that would facilitate completion of that transition.

Under the existing statutory and regulatory framework, carriers already can undertake the steps necessary to make the transition, including, in some cases, steps requiring Commission approval (such as withdrawing legacy TDM-based services). But, insofar as the transition raises a number of novel and likely contentious issues, Commission action on the items included on the attached list would greatly facilitate and thus hasten completion of the transition. The steps we identify implicate an array of issues raised in the above-referenced dockets. Accordingly, we are filing the checklist in each such docket.

Respectfully submitted,

Robert W. Quinn, Jr.

AT&T’s letter and attached checklist are documents only a policy wonk or careful observer of Big Telecom could easily navigate. Despite the thicket of opaque terms like “TDM” and the not-immediately-apparent importance of the difference between an “information service” and a “telecommunications service,” AT&T has, to borrow a phrase from President Obama, some brass ones making its intentions perfectly clear.

With the help of Bruce Kushnick, executive director of New Networks Institute and a former telecom industry insider, we will guide you through AT&T’s filing and what it really means.

AT&T lists several “critical first steps” (we have put them in bold) to achieve the transition to an all-IP telecom world, retiring the traditional “public switched telecommunications network” (PSTN) which you know better as a landline.

1. Establish a date certain for an official TDM-services sunset, after which no carrier would be required to establish and maintain TDM-based services/networks, and purchasers of such services (including circuit-switched and dedicated transmission services) would have to switch to IP or other packet-based services.

No casual observer of FCC filings would be expected to understand the implication of setting a date to officially sunset “TDM services.” TDM is synonymous with the landline network Ma Bell established more than 100 years ago — the one that gives you a dial tone, DSL, and access to dial-up Internet where broadband is unavailable. AT&T wants the FCC to manage what the company has not been able to consistently accomplish on the state level: setting a final date when traditional landline service can be permanently disconnected, preferably at the convenience of the phone company.

2. Clarify that any state requirements forcing service providers to maintain TDM networks and services […] following the TDM sunset are preempted. Such requirements could deter investment in broadband, and thus are inconsistent with and pose an obstacle to federal law and policies encouraging the transition to all IP networks and services.

This provision would effectively eliminate any existing state laws or regulations that require AT&T to deliver a fairly-priced, well-run landline service for customers throughout its service area. Some states have not bought into AT&T’s lobbying juggernaut, often delivered with the help of the American Legislative Exchange Council (ALEC). Despite the enormous sums spent lobbying legislators, some states have kept oversight in place requiring AT&T to serve everyone that wants phone service. With this provision, those state laws and regulations would be pre-empted.

AT&T claims state requirements somehow deter broadband investment, a curious conclusion considering AT&T has already largely ceased its expansion of DSL and U-verse services.

3. Complete action in the IP-enabled services proceeding, and classify such services as information services, subject to minimal regulation only at the federal level. The Commission could permit service providers to offer DSL or other broadband transmission services on a common carrier basis if they so choose, but in no event should a provider be required to do so. 

Quinn

This is AT&T’s provision to kill regulation and destroy competition. Government rules, regulations, and oversight apply largely to “PSTN” landline services, not to IP-based or broadband networks. Basic landline service is designated a “telecommunications service” by the FCC, which makes it subject to regulator review. Broadband, on the other hand, and anything else using IP, is typically classified as an “information service,” where most oversight regulations do not apply.

AT&T’s plan is to shut down today’s landline “telecommunications” service in favor of IP-based Voice over IP, which would effectively reclassify your phone line as an “information service.” That means by changing just one word — “telecommunications” to “information” — AT&T can walk away from a century of basic consumer protection rules and regulations. AT&T also gets a divorce from its telecommunications service obligations as a “common carrier,” which requires AT&T to deliver service to any customer who requests it, at a fair and reasonable price, without changing its form or content.

If AT&T’s broadband networks were reclassified as a “telecommunications service,” Net Neutrality would be easy to enforce under the “without changing its form or content” provision of common carrier rules. Back in the 1996 Telecommunications Act, AT&T’s lobbyists had already made their mark, creating new “distinctions” of telecommunications services, some more regulated than others. Now AT&T is back to kill off the last regulatory obligations it still has to endure, taking Net Neutrality to the grave once and for all.

4. Reform Interconnection – after the official date for the TDM sunset, no carrier or other provider of TDM based services should be entitled to require others to interconnect in TDM. The Commission should take action to maintain the market-based, regulation-free interconnection regime that has applied to IP-based interconnection for decades.

[…] Reform wholesale obligations under section 251/271 to eliminate unbundling, resale, collocation and other requirements that could require ILECs to maintain TDM networks and services.

These particularly opaque sections give AT&T’s competitors real nightmares because they would wipe out requirements that phone companies open certain facilities to competitors who deliver services over AT&T’s network. If AT&T’s recommendation is adopted, no competitor would be safe if AT&T eventually padlocks access to its network.

But AT&T does not want its intentions to be that obvious. It throws a transparent bone to regulators to offer a facade of competition in both this and the preceding recommendation.

AT&T instructs the FCC it can mimic the time-honored patina of an open, competitive industry by allowing AT&T’s competitors to sell DSL or other broadband services over AT&T facilities, but only if AT&T feels like it (at comfortable prices that don’t undercut AT&T).

5. Eliminate regulatory underbrush/superstructure that accompanies TDM-based services. For example, phase out equal access, residual ONA/CEI, record-keeping, accounting, guidebook, dialing parity, payphone, and data collection (which should be limited to that which is collected on the Commission’s Form 477) requirements.

AT&T leaving town.

What AT&T calls “underbrush,” consumers and regulators call oversight and consumer protection.

“Sayonara any telco rules, regulations and oh yes, your rights,” says Bruce Kushnick. “Your service breaks… tough. Prices go up and there’s no direct competition — too bad. Networks weren’t upgraded — so what.”

Kushnick notes this provision would allow AT&T to avoid maintaining a public record of its performance (and its potential abusive practices, bad service, and high prices), including any requirement on the state or federal level to tell the public anything about how well we are being served by the wired monopoly.

Other things on AT&T’s hit list: “Equal Access,” which opened the door to competitive long distance calling and lower rates, “Dialing Parity” which lets you avoid dialing ten (or more) digits for every call (or being forced to learn more complicated numbers for things like directory assistance or other shortened dialing numbers), and public payphones. AT&T’s desire to kill off “residual ONA” refers to the costs to establish Open Network Architecture — the framework for opening up the nation’s phone monopoly for competition. Re-establish the monopoly and there is no reason to fret about the costs to maintain access for competitors AT&T will eventually eliminate.

6. Further reform USF to provide support for broadband regardless of the regulatory classification of broadband services, eliminate any obligation to offer such services on a common carriage basis to be eligible for such support, and provide incentives for service providers to invest and offer services necessary to ensure that no one is left behind by the transition to an all-IP, broadband ecosystem.

The reform of the Universal Service Fund has already opened up opportunities for rural telecommunications companies to apply for broadband infrastructure grants to expand broadband in rural America. Only AT&T has refused to participate in the current round of broadband grants because they do not like the rules. AT&T wants a free hand to receive broadband funding, so long as it faces no questions about where the money gets spent. Under AT&T’s recommendation, the company would receive money with no obligation to ensure everyone who wants broadband in rural America can get it. It also wants the government to hand out money to providers to implement their goal of regulatory nirvana — the conversion of basic landline service to Voice over IP, idolized as the golden calf of ultimate deregulation.

But although providers won’t be left behind, consumers might be:

7. Establish/reform rules to facilitate migration of customers from legacy to IP-based services and to prevent customers that procrastinate or fail to migrate from holding up the transition. For example, establish a process for identifying a default service provider if a customer fails to migrate, and/or permit service providers to notify customers that they will be dropped from service as of a date certain if they have not migrated to an alternative service/service provider. 

This particularly arrogant provision would put a stop to Aunt Maude holding up AT&T’s grand plan to live a regulation-free lifestyle. How dare she drag her feet with AT&T’s agenda at stake? If your elderly parents or extended family don’t understand why AT&T is meddling with their landline service and don’t want to change, AT&T has an unsympathetic solution. Under their recommendation, your parents would find themselves with a “default service provider” they might not want to do business with or, even worse, simply leave them with a dead phone line AT&T has no interest in repairing. But AT&T would likely still get their way. In rural areas they already cover, AT&T would be the “default service provider” because it is the only service provider. If Maude wants her phone line back, the only way she will get it is choosing the migration to Voice over IP AT&T intended all along.

AT&T’s language is remarkably frank, but was never intended to be viewed and explained to the public at large. It was the product of a phone company lobbyist talking to a politician, staffer, or regulator that one day could become an employee of that phone company. The only way to stop this cozy relationship is to tell regulators you are watching (and understanding) the game being played here.

The FCC’s UHF TV Diet Plan: Slimming Down the Free TV Dial to Make Room for Expensive Wireless Broadband

By the end of this month, the Federal Communications Commission will vote on proposed rules governing a planned 2014 auction that will allow over the air TV stations to surrender their “free TV” channels in return for money from the nation’s wireless phone companies looking for more mobile broadband spectrum.

The Commission is considering reallocating UHF TV channels 31-51 for mobile data, compacting the nation’s over the air TV stations onto VHF channels 2-13 and UHF channels 14-30. But the FCC also expects many stations, particularly smaller independent or specialty channels in large cities, will be happier surrendering their broadcast TV licenses in return for cash compensation.

If the five FCC commissioners approve the plan, it will be the largest spectrum auction since 2008, and could earn the U.S. treasury billions, tempered by payouts to television stations agreeing to shut down their transmitters, and to compensate remaining stations for the cost of moving operations to a new channel number, when necessary.

“To ensure ongoing innovation in mobile broadband, we must pursue several strategies vigorously: freeing up more spectrum for both licensed use and for unlicensed services like Wi-Fi; driving faster speeds, greater capacity, and ubiquitous mobile Internet coverage; and taking additional steps to ensure that our invisible infrastructure for mobile innovation can meet the needs of the 21st century,” the agency’s chairman, Julius Genachowski, said in a statement.

The controversial auction would compensate broadcasters even before the FCC knows exactly how much spectrum it will eventually have available to auction to wireless carriers. Nobody is sure how many stations will ultimately choose to abandon their over-the-air audiences, but an FCC report predicts the largest number of station losses would be in large metropolitan areas, which often have more than a dozen stations devoted to infomercials/home shopping, ethnic shows, religious programming, and independent network affiliates. The FCC suspects some of these lower-rated stations will see the money as a strong incentive to surrender their broadcast licenses.

Genachowski

The FCC considered several spectrum-saving proposals that would free up as much channel space as possible to resell to wireless operators. One proposal would have full power broadcast outlets switch to low-powered cellular-style transmitter networks to reduce the potential interference on an increasingly crowded dial. But that proved unpopular and expensive for broadcasters. Instead, the FCC predicts stations could effectively share channels and still retain HD service. For example, a local CBS station could agree to surrender its license and broadcast instead over the transmitting facilities of the local NBC station, splitting one station’s allocated channel bandwidth in half. Other stations will be relocated on the dial or moved to different transmitter sites to reduce potential interference from stations in nearby cities.

Stations that do not require an HD service could share space with those serving several standard definition channels to the public. These are typically public, educational, or ethnic-oriented broadcasters.

As a consequence, the FCC says many stations might have to give up on their “multicast” standard definition secondary services — the 24 hour local weather or news channel, Me-TV, This TV, Retro TV, Antenna TV, and Bounce, for example, because there would be insufficient bandwidth when two services sharing one channel are transmitting in HD.

The FCC does not believe stations would mind too much, quoting from RBR/TVBR:

“So far, nobody’s been able to figure out what can go on a digital side channel and pay for its own presence there. Mostly it’s been used as a revenue-neutral or money-losing place to put 24-hour weather… Nobody watches these things in strong enough numbers to generate any advertising revenue.”

But the FCC did recognize that certain viewers in fringe reception zones could experience a loss of service — one that could be addressed by subsidizing improved antennas for homeowners or requiring cable or satellite operators to develop a “lifeline” television service consisting of local broadcasters, either for free or at a minimal monthly cost.

Some consumer groups worry that any forthcoming spectrum auction would be dominated by Verizon Wireless and AT&T — the nation’s two largest carriers, who could easily outbid smaller cell phone companies also clamoring for spectrum. During the last auction in 2008, which netted nearly $20 billion, Verizon Wireless walked away with the bulk of the spectrum on offer. Without auction rules setting aside significant spectrum for smaller competitors, both dominant carriers could lock up one of the last spectrum auctions for the next 5-10 years, cementing their de facto duopoly.

The FCC is considering reworking its market concentration rules before the bidding begins, which could constrain Verizon and AT&T from bidding and winning the bulk of available frequencies in the cities where they dominate.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Bloomberg FCC Chair on Spectrum Auctions 9-10-12.flv[/flv]

FCC Chairman Julius Genachowski talks about rising demand for mobile broadband access and the outlook for spectrum auctions to free up more airwaves. He speaks with Cory Johnson on Bloomberg Television’s “Bloomberg West.”  (7 minutes)

On important issues for the online community, there are some substantial differences between the Democratic and Republican parties, particularly regarding Net Neutrality.

A review of the yas and nays in both party platforms (and past history in Congress) shows your vote can make a difference when Washington ultimately deals with privacy, network traffic, piracy, cybersecurity, and broadband expansion.

Net Neutrality – “Preserving the free and open Internet”: Prohibits providers from discriminating against different types of network traffic for profit or control

• Democrats: Yas
• Republicans: Nay

While the Democratic platform specifically states, “President Obama is strongly committed to protecting an open Internet,” one “that fosters investment, innovation, creativity, consumer choice, and free speech,” Republicans have treated Net Neutrality as anathema to the free market. Although virtually every Republican member of Congress has voted against Net Neutrality or publicly opposed the concept, some Democrats have as well, particularly those who have received significant financial contributions from the largest phone and cable companies lobbying against the policy.

Net Neutrality has not proved to be a major issue in Congress this year, with most of the recent battles taking place at the Federal Communications Commission. FCC chairman Julius Genachowski applauded a ‘third way’ for Net Neutrality, staking out a middle-of-the-road policy that pleased few outside of the FCC. It largely leaves the concept a “suggestion” for wireless carriers. Replete with loopholes and enforcement issues, even wired providers like Comcast have run around the policy for their own benefit.

Network Privacy – Full disclosure when websites track your browsing habits, and how online companies protect your private information

• Democrats: Yas, provisionally
• Republicans: Yas, provisionally

Net privacy is a topic many consumers hear about the most when a website gets hacked and private customer information is stolen in the process. But a growing number of consumers are also concerned about what websites are doing with their information and how their web visits are being tracked for advertising purposes. Large online companies like Facebook and Google have a vested interest in keeping this space as unregulated as possible to maintain lucrative revenue earned selling demographic information to advertisers. But consumers may not want advertisers to know the websites they visit, and members of both political parties have expressed growing interest in taming who gets their hands on your private stuff. Republicans are primarily concerned about tracking by government agencies, Democrats are more concerned with for-profit use of customer data.

The Republican platform abhors government intrusion into private liberty — primarily a reference to certain forms of surveillance. But the GOP platform is silent on enhancing privacy rights of consumers. The Obama Administration has been calling for a “Privacy Bill of Rights” that permits consumers to opt out of web tracking cookies and other tracking technology. Democrats separately want companies to do a better job disclosing and explaining how private information is being used. But Congress, under heavy lobbying to avoid the issue, never acted on the administration’s request.

Expanding Broadband: Finding New Wireless Spectrum and Improved Rural Access

• Democrats: Yas on both
• Republicans: Yas on one, vacillating  on the other

While neither party fully embraces their respective platforms while governing, their stated positions often reflect political positioning when new laws are contemplated.

The Democrats tout both their National Broadband Plan and the Obama Administration’s commitment to find Internet access for 98 percent of the country and expand spectrum available to meet the growing demands for wireless data. The Democratic platform touted President Obama’s proposal to promote wireless broadband as a possible rural Internet solution.