CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Sometimes we all need Internet access for a laptop at a place with no Wi-Fi. One solution is to “tether” the laptop to a cell phone via cable or Bluetooth, so the laptop obtains Internet connectivity through the phone. The cell carriers charge extra for this. (We never understood why; since you are paying for the data anyway, we don’t see why the carrier should care what kind of device you use.) But those having a modicum of technical knowledge can download software that sets up tethering in a way the carrier cannot easily detect. Without detection, the tethering incurs no extra charge.

Verizon’s alleged violation, and the basis of the consent decree that cost it $1.25 million, was twofold: Verizon assessed the extra charge for tethering in the C Block, and it required an app store to block access by Verizon Wireless customers to the software that evades this charge. Those actions, said the FCC, violated the C Block neutrality rules, presumably by limiting the devices customers can use. Verizon did not admit fault, but it did agree to train its personnel on the C Block rules and to write that $1.25 million check. (According to the consent decree, Verizon’s payment was “a voluntary contribution” – we leave it to the reader to parse that particular terminology.)

In principle, then, if you have a 4G phone that uses C Block, tethering should be free. (Caution: data caps still apply; and a laptop can burn through data a lot faster than a phone.) 

Curious, we performed a very limited spot check to see whether Verizon had stopped charging its problematic $20 fee for tethering. What we found: three days after release of the consent decree – and possibly weeks after first hearing from the FCC – Verizon was still demanding $20 extra per month to tether a C Block phone. Eventually, we hope, they will push out updates to the phones that eliminate the charge.

If you live in the lower 48 or Hawaii and are not a Verizon Wireless customer, or don’t have 4G service, you are out of luck. Tethering charges remain legal. If you are a Verizon Wireless customer, and want to check if your phone uses C Block, do the following:

1. Find the phone’s FCC ID number – for a non-iPhone, usually under the battery. (Verizon does not presently offer a 4G iPhone.)

2. Go to this FCC website. Enter the FCC ID number: the first three characters go in the first field, and all other characters in the second field. Scroll down and click on “Start Search.”

3. On the next screen, inspect the right-hand column, which lists the frequencies on which the phone is authorized to transmit. Look for a number in the 776–787 range. If you find one, congratulations! You’ve got a C Block phone, and are probably entitled to free tethering (and maybe to free hot spot use as well). We say “probably” because your particular Verizon plan or location may not activate the C Block frequencies.

But even if you qualify, can you actually get free tethering and hot spot service? And refunds for past charges? Neither the FCC nor Verizon is saying.

Run your own experiment, if you have a C Block phone. Using the micro-USB to USB cable that came with the phone, connect the phone to a laptop, and turn both on. On the phone, go into Settings, and possibly More Settings or Advanced, looking for “USB Tethering.” Tap it and see what happens. What happened to us was a “Sign up” screen inviting us to incur that $20 per month. (You can back away without starting the charge.) Let us know your own results by posting a comment below.

On at least some app stores, software to bypass the tethering charges remains freely available, even for a Verizon phone. And besides pocketing the $20 per month, you will have the satisfaction of knowing that use of the software is probably legal, at least for you.

Student radio, particularly at the college level, serves an important role as an incubator for future generations of broadcasters. Student radio can serve as a conduit into the industry for a broad and diverse universe of voices – precisely the type of diversity the Commission has long sought to promote through a wide range of policies. (For an interesting article about college radio, check out this recent piece published by Radio Survivor.)

Against these evident benefits, the oppressively negative impact of the FCC’s forfeiture policies can and should raise serious concern.

Our firm works with several student-operated stations. We know that college is a time for learning and experimentation. We also know that student-run stations are in many significant ways very different from normal commercial operations. The staff at a student station generally turns over at least 25% a year, as seniors leave and freshmen arrive. Institutional memory tends to be short, and basic lessons have to be re-taught and re-taught. Working with students is an endless instructional process. In that environment, mistakes will be, and often are, made. 

The college environment is supposed to encourage learning and experimentation. That environment normally tolerates mistakes that come with learning and experimentation unless the harm is severe. It is difficult to see any severe harm done in any of the recent cases involving forfeitures dealt out to student-run stations. 

But the FCC knows no tolerance – and as a result, even a harmless mistake borne of regulatory naiveté can destroy a station because, as the FCC’s historical fining practices demonstrate, the Commission cuts student-run stations no slack when it comes to compliance issues.

We spend a lot of time engaged in the challenging chore of introducing students to the importance of the FCC’s regulatory requirements. It’s easy to explain why a station shouldn’t operate at excessive power or off its proper frequency. We may even be able to keep a straight face when we spell out indecency restrictions (although some students snicker at regulations that suppress their music and forbid the use of words that are part of their daily vernacular).

EEO recruitment requirements are rather more difficult to sell because those requirements are out of date and don’t reflect the real world of 18-21 year olds. Yes, students themselves may not routinely be involved in recruiting employees, but EEO rules are a part of the Commission’s regimen, so students are schooled in even those esoterica. What’s a student in 2012 to make of a rule that doesn’t allow a station to rely exclusively on web-based recruitment? That notion is mind-blowing to students who search for everything on the web and nowhere else.

Even more difficult to grasp, on several levels, is the public file requirement. Students produce some very innovative programming, often spontaneously. Documenting that programming tends not to be a high priority for students, if they think of it at all. That’s especially true when any documentation that might be produced just goes into a file that no one has ever come to see during the memory of any current student. You can explain the theory behind the requirement until you’re blue in the face, but it won’t make a dent. 

So let’s all agree that, in the ecosystem of student-run stations, the likelihood of violations is high. Kids, like puppies, tend not to behave the way we might like, or the way that we can expect them to once they’ve matured a bit. But do we really want to penalize them in the same way we might penalize their more mature counterparts – especially when the brunt of any forfeiture will be borne not by the students, but by their educational institution?

Case in point: Bethany College has only 830 students. Where does the FCC think that the student radio station is going to come up with $6,500?

Oh sure, targeted schools can request that the fine be reduced. But in assessing such requests, the FCC relies on the income of the entire college, not just the radio station. Result: forfeitures for student stations are seldom reduced. The reaction among the Responsible Adults in a college’s administration is likely to be OMG, the kids got us in hot water with the feds. We have federal research grants and relationships with lots of federal agencies. We can’t afford to have a black mark on our record. Priority Action Items: (1) Pay fine; (2) Get rid of radio station.

And once that happens, diversity and learning suffer as young voices are silenced. 

There’s already plenty of pressure on cash-strapped universities and colleges to get themselves out of the radio business. The University of San Francisco, for example, has dumped KUSF(FM) (new call sign – KOSC). And Vanderbilt University has turned programming responsibilities for WFCL over to Nashville Public Radio through an LMA (that according to a petition to deny directed against the recent WFCL renewal). Nationwide concern about the fate of college radio generally has led to a number of activities to save that institution.

The FCC’s hefty fines don’t help make radio relevant to the younger generation or encourage learning and innovation. Every time the Commission whacks a college station with a budget-crushing forfeiture for violating rules that make no sense to students, the FCC ensures that another batch of students will enter the career world with some combination of fear and disdain for the agency rather than the respect they might have had – or, very possibly, the fine may lead those students to choose a career beyond the reach of the FCC. We find that disappointing and sad.

Wouldn’t it be more meaningful if, instead of a budget-crushing fine, the punishment for a student violation were more narrowly tailored to the circumstances? Perhaps the wrong-doer could be required to write a paper explaining the basis for the rule that was violated and outlining steps that might be taken to achieve compliance. Writing papers is something that students understand. It’s an exercise that they’re likely to remember. Of course, if the conclusions in the papers sometimes turn out to be critical of the rule, that’s something that the FCC should welcome in its ongoing quest for transparency and relevance.