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

It appears that OMB had a number of concerns about the survey as it was initially presented. The materials available for review at the OMB website reflect a major league overhaul of the Commission’s “Supporting Statement” along with a number of tweaks to the survey itself.

The Supporting Statement now consists of 23 pages, split up into two separate sections. That’s in contrast to the original version of the Supporting Statement filed back in November – which weighed in at a meager four pages. (Oddly, the original version appears to have gone missing from the OMB website. No worries – we kept a copy; you can read it here.) The first section (presumably from somebody at the Commission, although it’s unsigned and unattributed) now waxes eloquent about “competition” and “diversity” and “localism”. According to the Commission, the survey will, among other things, “collect information on consumers’ perception of the quality and quantity of the local content provided.” 

But the only survey question focused on “localism” reads

A media environment with low localism provides very little or no information on local news and events. With medium localism, there is some local information, and it reflects some of the interests of your community. With high localism, the information reflects many of the issues and interests of your community.

Consider the sources of information from your media environment. Please indicate their level of localism [on a three-level scale, i.e., “Low”, “Medium” or “High” localism].

Later questions solicit the respondent’s “satisfaction” (on a five-point scale) with the level of “localism” which he/she perceives to be available. The concept of “satisfaction” is not defined in any discernable way. Neither is “localism” or “local content” (other than through a reference to “examples” like reports on “school sporting results”, “city/county elections” or “neighborhood crime”). The words “quality” and “quantity” don’t appear in the survey at all.

With all due respect, it’s difficult to see how that survey question (even with follow-ups about the undefined notion of “satisfaction”) could possibly produce any useful information at all about “consumers’ perception of the quality and quantity of local content” available to them. 

And are consumers’ “perceptions” a meaningful consideration in any event? If “localism” really is a valid regulatory concern, shouldn’t the Commission be concerned about the nature, amount and source of “local” programming actually available? (With respect to the Commission’s self-serving description of the regulatory significance of “localism”, readers might want to take a look at these Comments (continued here and here) and this law review article for a different perspective on the subject of localism.)

The second part of the new-and-improved Supporting Statement appears to have been prepared by the non-FCC folks who drafted the survey. To say that it’s technically challenging is an understatement. Be sure to have a dictionary on hand if you try to read it. (Sample terms: “cross-sectional regression analysis”, “exogenously”, “collinearity”, “dichotomous”, “bivariate probit”, “computationally intractable”)

It’s also got a boatload of stuff like:

A linear approximation to the household conditional utility function is:

U^* = β₁COST + β₂ADVERTISING + β₃DIVERSITY + β₄LOCALISM

+ β₅MULTICULTURALISM + e                                                                       

where U^* is (unobserved) utility, β₁ is the marginal disutility of COST, β₂, β₃, β₄ and β₅ are the marginal utilities for the media environment features, ADVERTISING, DIVERSITY, LOCALISM and MULTICULTURALISM, and e is a random disturbance.

We’ve established in previous posts that this particular blogger is not a probs/stats jock, so you won’t find me criticizing this end of things. But even if we assume the fancy math is all exactly right, doesn’t the validity of the results depend ultimately on the validity of the data being fed into all those fancy equations?

In addition to the Supporting Statement (Parts A and B), the OMB website now also includes a “Response to OMB Review” apparently submitted by somebody on the survey design team who seems to have been responding to more or less specific OMB questions. The interesting point here is that it looks like OMB actually did critique the original version of the survey in some detail.

Not that it did much good.

Oh sure, at OMB’s suggestion, the original reference to USA Today (at Question 42, about “diversity”) has been changed to The Wall Street Journal. And where, in the same question, the original version parenthetically assigned political values to “CNN news (more liberal)” and “Fox news (more conservative)”, those parenthetical descriptions have gone away in the new version.   Another change – in Question 48, the following “example of multiculturalism” has been deleted:

[N]ews outlets that, rather than only reporting negative news from African American or Hispanic neighborhoods, such as robberies and shootings, provide a balanced story of “what is going on” in these neighborhoods.

But when OMB questioned the “vagueness of the features of the media environments” or the use of “Low”, “Medium” and “High” as descriptives for levels of, e.g., “localism” and “multiculturalism”, the survey designers simply declined to make any changes.

And with those changes and non-changes, OMB has approved the survey. Kind of. The survey has been cleared only for “the focus group and pre-test portions”, meaning that when those preliminary hurdles have been crossed, any additional changes will have to be sent back to OMB for further review. OMB also imposed several technical conditions.

Notwithstanding the conditions and possible further review, though, it appears that OMB is not going to stand in the way of the deployment of the Consumer Survey. It will be interesting to see whether the FCC and its contractors ever get around to administering the survey. After all, back in November, the Commission took the position that any delay in administering the survey “will make the contractors’ already tight deadlines unworkable.” OMB still hasn’t fully approved the survey, we’re now half-way through January, and it’s hard to imagine that those deadlines that were “already tight” two months ago have become any more “workable”. 

But where there’s a will, there generally turns out to be a way. Ostensible reliance on extended fact-finding is something agencies like to trot out when their rulemaking actions are appealed. Cynical observers might suggest that the survey is just an effort to generate a nice batch of seemingly scientific statistics to cite in support of whatever conclusions the Commission would like to reach. The near total absence of useful definitions of crucial terms, together with other obvious shortcomings (e.g., an apparent failure to clearly delineate “broadcast” from “nonbroadcast” sources of video programming), does nothing to dispel such musings. It’ll be interesting to see how this plays out – but don’t be surprised if you hear a lot more about the survey when the FCC tries to move forward with its Quadrennial Review.

Take a scanner radio and tune through the bands. The local AM, FM, and TV stations will show activity, as will the cell phone bands and the amateur radio bands. The rest, though, is mostly empty. Even bands that are heavily licensed, such as those used for two-way radios, are actually used only infrequently, and will show sparse activity at most. To be sure, the scanner radio will miss satellite signals, fixed microwave links, “passive” applications (such as radio astronomy), and a few others. And some users, like a first responder who picks up a microphone to call for backup, see a vacant channel as a good thing. But the fact remains: although small pieces of spectrum are overcrowded, much of it goes unused most of the time.

The FCC has taken early steps toward smoothing out the load – for example, allowing licensees to lease out their excess spectrum to others. Industry engineers have come up with “cognitive radios” that respond to the ongoing state of the radio-frequency environment by changing frequency band, modulation, etc. to make better use of temporarily vacant spectrum. Every Wi-Fi laptop automatically sniffs out quiet channels within the Wi-Fi bands. Radios in another, less-used laptop band test the air to avoid radar devices that share the band. Still another band requires transmitters to share frequencies cooperatively. TV “white spaces” devices, if and when they appear, will either sense the spectrum directly or will check in with a database to find locally vacant frequencies.

The FCC now wants to expand automatic spectrum-sharing to help alleviate the shortage. Rather than offer specific proposals, however, it is on a hunt for ideas. The broadly-worded Notice of Inquiry asks for comment on several topics:

• The current state of spectrum-sharing radios. Techniques for sharing include detecting and identifying other users’ transmitters, exchanging information among users to determine whether a frequency is vacant, and detecting changes in the noise floor to see if there is room for additional traffic. But straight sensing turned out to be an unexpectedly hard problem in the TV white space proceeding. Another hard problem is monitoring the noise floor. The FCC proposed something similar in its former interference temperature proceeding, since abandoned.
• Use of geolocation and real-time database for checking frequencies. The white space proceeding will test this idea, if the FCC ever solves the problem of database design. After a two-year struggle, still on-going, an FCC official has informally indicated that a solution may be announced “real soon.”   Also, geolocation usually relies on GPS, which does not work well indoors.
• Building interference suppression into radios. Most experts would agree that good receivers are a key element of efficient spectrum use. Yet the FCC earlier considered the imposition of standards on receivers, only to drop the idea. 
• Improving interference prediction. Spectrum-flexible radios will have to avoid causing interference to other users. Effective technical rules must rest on good predictions of how radio signals at various frequencies behave, in different environments. The mathematical models needed for this work have lagged behind other aspects of radio technology.
• “Policy radios.” The next step beyond cognitive radios, these are transmitters programmed with broad policy constraints on spectrum usage. The concept is still in its early stages.

After inviting discussion on these topics, the Notice of Inquiry turns to nuts-and-bolts practical questions. How should the FCC test the new radios for technical compliance? How should it license them? How can it facilitate spectrum sharing between licensees and other users? What frequency bands can make best use of the new methods?

The end result of this undertaking, years from now, will be an utterly different radio spectrum – as different from today’s as today’s is from the spark-gap era. Transmitters will automatically hop among frequencies, stepping into vacant channels temporarily and then moving on. The result will be vastly more traffic in the same amount of spectrum.

We commend the FCC for reaching out to the public early in the process, even though the agency’s own ideas are still embryonic at best. The many people who will be affected by the coming changes – manufacturers, service providers, end users, regulators – will welcome the opportunity to help shape the outcome.

Comments and reply comments are due 60 and 90 days, respectively, after the Notice of Inquiry appears in the Federal Register.  We will let you know when that happens.

Environmental groups have long claimed that towers kill as many as 50 million birds per year, and that the Commission should therefore apply NEPA procedures to the ASR program. Tower operators protest that towers kill fewer than that. Previously, the FCC claimed this lack of consensus – and the lack of specific evidence – relieved it of the NEPA-imposed obligation to consider the environmental effects of the ASR program.

In 2008, the D.C. Circuit rejected the Commission’s argument. Under Commission’s own rules implementing NEPA, if an action “may have significant environmental impact, the Bureau will require the applicant to prepare an EA”. According to the Court, the Commission’s insistence that environmental groups show definitive evidence of significant effects “plainly contravenes the ‘may’ standard”.   Furthermore, the squabble over the number of birds killed confirms, rather than refutes, that registered towers may have significant environmental impact. Finally, the Court observed, the FCC’s refusal to consider the environmental effects of on these grounds goes against the basic intent of NEPA: ensuring that agencies consider environmental impacts before they act – that is, before the full ramifications are known – rather than wait until it is too late.

Accordingly, the Court held, the Commission must conduct an EA to determine whether an EIS is called for before the Commission can refuse to conduct an EIS. Pursuant to the Court’s direction, the Commission is, by its recent Public Notice, doing just that: a Programmatic Environmental Assessment (PEA) of the ASR program to (a) examine the potential effects of that program on migratory birds and (b) determine whether a programmatic EIS is necessary.

What does all this paperwork do for the birds? NEPA does not operate by imposing substantive environmental mandates on federal agencies. Rather, it requires them to explicitly thinkabout environmental issues before they take action. Specifically, preparing an EIS will require the FCC to set out a number of alternative ways to reach its regulatory goals and the environmental impact (e.g., the anticipated mortality rates of migrating birds) of each alternative. The purpose is to ensure that the agency has before it the environmental consequences of each scenario before it chooses which way to go. (The process also informs the public of the environmental aspects of the proposed action.) In this case, even if the Commission concludes from its EA that no EIS is necessary, the Commission has already committed to use the EA process to “consider alternatives to address potential environmental effects”.

Although NEPA does not require the FCC to complicate its tower registration program, it may well have that effect. Historically, tower registration has been a simple matter of uploading certain basic information about the tower to the Commission’s ASR system, which then automatically generates a registration number with no muss and no fuss. The upcoming EA process will undoubtedly serve as yet another forum for the ongoing struggle between tower owners and environmental groups. Any resulting compromise, such as the one put forth last spring, seems likely to add layers of bureaucratic complexity to the ASR system, particularly if the Commission is expected to assess the potential environmental impact of any individual towers (there are over 100,000 towers in the Commission’s database).

Comments about the PEA may be submitted by mail, by hand, or electronically through a link on the Commission’s PEA website. The deadline is January 14, 2011. Or better yet, you can present your comments in person at one of the three “scoping meetings” currently on the schedule. Those meetings are on tap in Washington, D.C. (1:30-4:30 p.m. ET on December 6, 2010), Chula Vista, California (6:00-8:30 p.m. PT on December 13, 2010) and Tampa, Florida (6:00-8:30 p.m. ET on December 15). The DC meeting will be held in the FCC headquarters. The Chula Vista gig will be at Civic Center there, and the Tampa confab will be at the John F. Germany Public Library. Come one, come all – but note that seating may be limited.

Once there, click on the link to “Consumer Survey (2010).pdf”, which appears in the “Instrument File” column of the table on that page. (We’ve helpfully marked that in the illustration above.) The Survey should pop up on your screen as a PDF file. As we suggested in our last post, it makes for interesting reading.

But wait, there’s more. If you go to this other page at the OMB site, you’ll find links to three additional documents. One (identified as “Supporting Statement A”) is the supporting statement we provided a link to in our earlier post about the Survey. No real news there.

But the other two are pretty interesting in their own right.

“Supporting Statement B” sheds some light on how the Survey will be administered. Turns out the perfessors who designed the Survey have subbed out the actual conduct of the operation to a company (Knowledge Networks, or “KN”). KN will send the Survey to “a random sample of the U.S. population, potentially obtaining information from an estimated 5,000 households.” Statement B contains a lot of impressive stuff about statistical this and estimation that – stuff that, frankly, this blogger doesn’t fully grasp (“Dammit, Jim, I’m a communications lawyer, not a probabilities and statistics expert”). 

It’s all apparently intended to provide assurance that we should have confidence in the accuracy of the Survey results. For example, Supporting Statement B advises that, because the Survey will be conducted online, KN will be able to determine how long it takes any particular respondent to answer any particular question. According to KN, “[t]his gives the contractor a natural measure of the certainty the respondent feels in his or her answer. This information is useful in ameliorating the effects of hypothetical bias.” Perhaps that’s valid, but might the response time be affected not only by the respondent’s “certainty” in his/her answer, but also the respondent’s desire to get on with his/her life sooner rather than later, or possibly the respondent’s need to go to the bathroom, answer the phone, get a bite to eat, etc., while plowing through the 25-page Survey?

Another example: KN has developed a number of strategies to assure accurate response from “low-education and cognitively challenged respondents”. One such strategy involves “re-asking questions through a confirmation exercise if it is apparent from inconsistencies in the survey answers that the respondents do not understand the survey questions”. But if the respondent didn’t understand the survey questions the first time through, will “re-asking” those questions really help?

The bottom line here is that Supporting Statement B strives mightily to soothe us all as to the likely accuracy of the Survey’s results. The problem is that there remains a “black box” sense to the whole thing. And, to some of us not intimately familiar with probs and stats, that sense is not helped by the fact that devices supposedly designed to improve accuracy might also be seen as opportunities to put one’s thumb on the scale.

The third document (file name: “Emergency Letter (Consumer Survey). pdf”) linked on the OMB page is the FCC’s explanation about why the Survey needs to be approved by OMB on an “emergency” basis. And the answer is . . . well, you should read it yourself, because maybe we’re missing something.

The Commission notes that the Survey would be conducted in connection with the statutorily-mandated Quadrennial Broadcast Ownership inquiry. That’s undoubtedly true, but why does that require “emergency” treatment? The FCC doesn’t say.

The FCC then advises that it was unable to award the bid for the Survey until September 30 “[d]ue to a significant delay in obtaining funding”. We all know how that goes, but that explains only why it’s taken so long to get to this point – it does not explain why getting the Survey approved by November 22 is important. The Commission does say that the contractor “is required to submit a draft of the study” to the FCC by January 5, 2011, with the final study due by January 31, 2011. Where those deadlines came from, though, and why they are apparently etched deeply in stone is not disclosed.

So the “emergency” here is apparently that the FCC has established a deadline – based on what, the Commission doesn’t say – and in order to meet that deadline, it would like the Survey to get moving pronto. We strongly suspect that if a broadcaster seeking “emergency” FCC action relied on this kind of showing, the Commission would routinely reject it out of hand – but that just goes to show what happens when the shoe’s on the other foot.

One aspect of the Commission’s “emergency” claim is particularly troubling. It seems clear that the (presumably) FCC-established deadline for completion of the final report is driving the bus here, which seems backwards. If the Survey is intended to provide useful insight into the issues on the table, shouldn’t the researchers be given the time they need to complete their survey thoroughly and analyze the resulting data completely first, before the Commission can even start to set deadlines for wrapping things up? This apparent Deadline-Über-Alles approach does not inspire confidence here.

And let’s take a look at the Survey schedule, if the FCC does get OMB approval on November 22. According to Statement B, KN plans to run the Survey past not one, but two focus groups. We’re guessing that that’s likely to take at least a couple of days. If OMB gives the Survey its blessing on November 22 (the Monday of Thanksgiving week), it seems unlikely that the focus groups will have been conducted, the results compiled, and any adjustments to the Survey made before, say, December 1. So let’s say the Survey gets deployed to the random universe of 5,000 folks on 12/1. Supporting Statement B says that respondents will have “a two-to-four week period to reply”. That means that the responses won’t all be in until after Christmas. But the draft report is due to the Commission on January 4. Is that schedule really consistent with an interest in achieving the most accurate and reliable report which might meaningfully contribute to the resolution of important questions?

If you have any thoughts about any of this, you have until November 22, 2010, to pass them along to the FCC and/or OMB. And as we suggested in our earlier post, since the FCC seems to expect OMB approval on November 22, it would probably be a good idea to get comments in sooner rather than later.

The consumer survey will be used in a determination to define a performance metric related to the public interest goals the Commission seeks to promote through its media ownership rules. The Consumer Survey will be used to examine the impact of local media market structure on consumer satisfaction with available broadcast radio and television service. The Consumer Survey will collect information regarding how much time people spend with various media and how people get news and information. The Survey will ask respondents to rate, on a numerical scale, their current satisfaction with the overall local media environment and with components such as broadcast television, broadcast radio, and newspapers. The Survey will also include questions asking respondents to rate their current satisfaction with the local news, local public affairs, and other locally oriented media content. This survey will be distributed via the Internet to a nationwide sample of consumers, and the Commission anticipates approximately 5,000 responses to the survey.

The proposed survey was supposed to be available at the OMB website on November 5. As of 4:00 p.m. on November 5 it wasn’t there, although a very helpful FCC staffmember assured us that the survey (and an accompanying “Supporting Statement”) had been sent to OMB for posting around noon. We don’t doubt her on that, since she also very kindly sent us copies of both. We were going to include our own link to the Survey, but we noticed that its front page bears an ominous copyright notice (claiming ownership by the surveyors, not the FCC), so out of an excess of caution, we’ll hold off on including a link until it shows up on the OMB site. But we will include a copy of the FCC's Supporting Statement here – to tide you over until OMB catches up. (Remember, you have only 17 days to comment, so every minute counts!)

A quick look-see at the survey suggests that there may be plenty of reason to comment.

For openers, the survey is titled “Choosing information from your media environment: What are the options?” That doesn’t sound like it’s gearing up to measure “consumer satisfaction”, but what the heck – it’s just the title.

Remember how the Commission said in its Federal Register notice (quoted above) that the survey would, among other things, inquire about “satisfaction” with “broadcast television” and “broadcast radio”? Well, it doesn’t really do that, mainly because it makes no serious effort to distinguish between “broadcast” services and NONbroadcast services (such as satellite radio, satellite TV, or cable). And when the survey does allude to such differences, it does not do so in a helpful manner. To wit: “Broadcast TV channels are free, over the air if you have good reception, e.g., ABC or NBC. They are often re-transmitted by the cable or satellite company, but they are still broadcast channels.” All true, sort of.

And even if we could accept that rough-hewn definition of “broadcasting”, it really doesn’t make any difference. That’s because, in what appear to be the pay-off questions seeking comparisons among the various different types of “media”, the survey lists merely “radio” and “TV” as options, without reference to broadcast vs. nonbroadcast. And the ultimate question about “satisfaction” (that would appear to be Question No. 51) doesn’t even distinguish among the different types of media – rather, it asks about the respondent’s level of satisfaction with his/her “overall media environment”.

So how is this survey going to provide any useful information at all about “broadcast ownership”?

There are other problems. For example, the survey doesn’t attempt to define for the respondent’s benefit the concept of “satisfaction” as it is used in the survey. How, then, can we know that one respondent’s definition of “satisfaction” is even remotely equivalent to another’s – much less what, precisely, any particular respondent might mean by “satisfaction”.

And while the survey poses questions about the availability of “localism” and “multiculturalism” in the respondent’s media environment, the definitions of those two terms are interesting, but not particularly useful from a regulatory perspective.

Eschewing any effort to provide, like, real definitions, the survey opts instead for “examples”. For “localism”, the survey refers to “reports on: school sporting results, local council meetings, city/county elections, neighborhood crime, local heroes who give their time to the community, or job layoffs at a local factory.” For multiculturalism, the examples offered are “reports on: the Cinco de Mayo celebration, female wage inequality, or programs that help people with disabilities find a job.” Oh yeah, and “news outlets that, rather than only reporting negative news from African American or Hispanic neighborhoods, such as robberies and shootings, provide a balanced story of ‘what is going on’ in these neighborhoods.”

Those may, of course, be perfectly valid examples of the surveyors’ understanding of “localism” and “multiculturalism”. But remember, this survey is supposed to be used by the FCC to develop FCC policy concerning broadcast ownership. Unless the basic terminology used in the survey correlates with some precision to corresponding FCC terminology, it is difficult to see how the survey could produce any data that the FCC could legitimately use. Needless to say, however the FCC may have conceived of “localism” heretofore, it has not defined it like the survey does. Ditto for “multiculturalism”.

The survey includes an elaborate series of questions in which the respondent is asked to indicate a preference between two different mixes of five variables (i.e., “cost”, “advertising”, “diversity”, “localism”, and “multiculturalism”). Again, it’s not at all clear how these questions will generate any data properly useable in an assessment of broadcast ownership.

Don’t take our word for it. Click on the survey when it shows up on the OMB site and wander through its 25 pages. (Try to do so in 15 minutes, though – that’s the time the surveyors estimate will be needed to complete it. Presumably that time estimate does not include the time necessary to locate all your recent bills for newspaper, satellite radio, cable/satellite TV and/or Internet service – all of which are required to answer a number of the questions. 15 minutes? Good luck with that.)

Over and above the survey itself, the FCC’s submission to OMB sheds no light on precisely how the survey will be administered. We know that the surveyors plan to distribute it to about 5,000 people over the Internet, but who those lucky few are and how they will be chosen is a mystery. (Despite its Internet-based delivery, the survey will be available to folks who don’t have home access to the Internet. That’s because the surveyors plan to provide such folks with “free netbook computers and Internet access”. Other “non-specific survey incentives” will be provided to respondents to “maintain a high degree of panel loyalty”.  Where can we sign up?)

Oh, and by the way, according to the FCC’s Supporting Statement, the survey cost $88,300 to produce. Those would be our tax dollars at work.

Anyone interested in commenting on the survey has until November 22, 2010 to do so. You should bear in mind, though, that the FCC has asked OMB to approve the survey on the 17th day, so it might be a good idea to file comments sooner rather than later. (Of course, if the FCC is already expecting OMB approval on November 22, what are the chances that the opportunity to file comments with OMB is likely to be much more than a charade?)

The Commission’s latest inquiry seems to respond in large measure to two aspects of the Verizon-Google Proposal. According to Verizon and Google: (1) as long as they comply with four general Open Internet principles (relating to consumer protection, transparency, non-discrimination, network management), Internet service providers should be allowed to provide other broadband services that would not be subject to the Open Internet rules; and (2) wireless Internet access service providers should be subject only to the transparency principle at this time. 

Well, isn’t that special?

With respect to the question of “specialized” services, the Commission is concerned that carving out exceptions for such services could undermine the ultimate effectiveness of the Open Internet principles. “Specialized” services include things like subscription video, telemedicine, or business services to enterprise customers. They’re services that are provided over the same last-mile facilities as “broadband Internet access service” (BIAS). They can in many instances look just like the kind of services normally available to the public through standing Internet access. But they are available only to those who sign up, and they typically incur costs beyond ordinary Internet access.

And that’s the problem.

Such “specialized” services can attract important private investment and can provide those willing to pay with new and valued services. There is therefore good reason to foster them by, for example, exempting them from Open Internet principles. In the NPRM the Commission appeared to recognize this and, accordingly, sought comment on how to define such services.

But the Commission is now focusing more on the possible risk that, if providers avail themselves of such an exemption, the whole point of those principles might be defeated. Providers might use the exemption to avoid Open Internet principles with respect to delivery of services that are substantially similar to standard broadband service. Or providers might devote so much of their capacity to such “specialized” services that the incentive and resources to expand standard broadband service would “wither”. The potential for anti-competitive conduct exists as well. And the risk of any of these undesirable consequences would be exacerbated if the public’s choices of Internet broadband service providers are unduly limited.

With these concerns in mind, the Commission suggests six possible approaches:

“Definitional Clarity” – This would involve defining BIAS “clearly and perhaps broadly”, with the Open Internet principles applicable to such service. “Specialized” services not subject to the Open Internet principles would be those services with a “different scope or purpose than broadband Internet access service (i.e., which do not meet the definition of broadband Internet access service)”,. This is somewhat similar to the approach suggested in the Verizon-Google Proposal, which characterized the exempt services as “additional or differentiated services . . . distinguishable in scope and purpose from broadband Internet access service”. The main difference, it would appear, is that the FCC is contemplating a more inclusive definition of BIAS that would, presumably, narrow the range of services entitled to the exemption.

“Truth in Advertising” – This heading – quoted directly from the FCC’s inquiry – is curious. The Commission’s brief summary under this heading refers to prohibiting providers from marketing “specialized services” as a substitute for BIAS. The Commission also suggests requiring providers to offer BIAS as stand-alone service. It is not clear that either of those suggestions necessarily involves “truth in advertising”.

“Disclosure” – This approach would entail the required disclosure, by providers, of information about specialized services, including their effect on capacity and the BIAS market.

“Non-exclusivity in Specialized Services” – Commercial arrangements for the offering of specialized services would have to be offered to all qualified parties on the same terms.

“Limit Specialized Service Offerings” – Broadband providers would be allowed to offer “only a limited set of new specialized services, with functionality that cannot be provided via broadband Internet access service”. The Commission offers telemedicine as a possible example.

“Guaranteed Capacity” for BIAS – Broadband providers would have to keep “providing or expanding” capacity allocated for BIAS regardless of any specialized services offered. Moreover, the provision of specialized services would be prohibited from “inhibiting the performance of broadband Internet access services at any given time, including during periods of peak usage”. Some of these suggestions are strong medicine, although for now, merely a starting point for discussion.

Going mobile

With respect to mobile wireless platforms, the FCC has asked in the NPRM how, to what extent, and when openness principles should be applied. Again, the Commission is concerned about furthering innovation, private investment and competition in the industry. In the most recent inquiry, the Commission seeks to update the record on these questions in light of intervening developments.

The two intervening developments that appear most significant to the Commission are: (1) the Verizon-Google Proposal suggestion that wireless broadband be exempt from all Open Internet principles other than transparency; and (2) the recent rise of wireless pricing plans based on the amount of data the customer uses. The latter, in particular, raises a serious question.

In essence the issue boils down to this. The need for “network management” – i.e,, blocking or slowing traffic – generally increases to the degree that network traffic approaches or exceeds network capacity. If usage-based pricing reduces congestion on wireless networks, will wireless operators have less need to use traffic management techniques that trigger open Internet issues?  

The latest inquiry raises far-reaching questions, and poses potential solutions, that are likely to generate considerable debate. Look for a further influx of commentary, for and against, as the deadline for comments approaches. (As of this writing the deadlines for comments and replies have not been established. Check back to www.commlawblog.com for updates.)

There is two additional intriguing aspects of the latest inquiry (and Chairman Genachowski’s separate statement in support of it). First, according to the notice, the “discussion” triggered by the Open Internet proceeding “appears to have narrowed disagreement on many of the key elements of the framework proposed in the NPRM”. Genachowski’s statement strikes a similar note. It is, of course, impossible to say for sure whether that gloss on the on-going deliberations is accurate. Certainly the Chairman would prefer it to be so. The response to the most recent may or may not tell a different story. 

Second, whenever the comment and reply deadlines happen to be set, the window for replies will not close before November 2. . . which happens to be Election Day. That means that the conclusion of the Open Internet proceeding, once expected by some to be set for September, will not happen before the upcoming election. In view of the high profile the issue of Network Neutrality has had on Capitol Hill – it’s probably no accident that Verizon and Google titled their magnum opus a “Legislative” proposal – an intervening election could have a significant impact on the fate of the Open Internet proceeding.   We shall see.

The problems begin in the first footnote of the NOI, where the FCC unhelpfully introduces new terminology, or (more accurately) uses a variation of an established term to mean something possibly different. Where the Commission had previously used the term “broadband Internet access service” for a bundle of services that allow end users to connect to the Internet, it now drops the term “access” and calls the bundle “broadband Internet service”. This seems backwards. According to Commissioner Copps, at least, the Commission is seeking only to regulate how people “get to the Internet”, not the Internet itself. Deletion of “access” certainly suggests that that the target of FCC regulation is getting broader, not narrower.

In the NOI the FCC refers to the component which it would regulate as “Internet connectivity service” or “broadband Internet connectivity service”.  This, too, gives rise to potential confusion and a need for careful definition.  

Historically, the Commission has defined the term “Internet connectivity” to include functions that “enable [broadband Internet subscribers] to transmit data communications to and from the rest of the Internet.” But this definition is probably  too broad to apply to the theoretically more narrow and discrete term “Internet connectivity service”. Apparently sensitive to this none-too-subtle nuance, the Commission solicits information on the specific functions necessary to allow end users to merely access the Internet, without more.

The Commission has previously used the term “Internet connectivity” to refer to a wide range of elements, including: the establishment of a physical connection to the Internet; interconnecting with the Internet backbone; and sometimes provision of numerous other features (think protocol conversion, Internet Protocol address assignment, domain name resolution, network security, caching, network monitoring, capacity engineering and management, fault management, and troubleshooting). Now the Commission wants to revisit “Internet connectivity.” But who is to make the call? Should ISPs be given latitude to define their own telecommunications service, should the FCC define only “bare minimum characteristics” of such service, or should the FCC step in and define “functionality, elements, or endpoints of Internet connectivity service”? Complicating the picture are important differences among the various technologies for delivering broadband Internet, and even among providers’ implementations of those technologies.

Re-engaging in this kind of functional analysis could be a dangerous task for the FCC.  After similar analyses, a pair of Commission orders in 2002 and 2005 concluded that the transmission component is so integrated with the finished Internet service as to make the two a single, integrated offering.  Is there adequate justification – based, for example, on changes in the functional components over the last decade – for adopting some alternate definition that splits the previously integrated components? In the NOI the Commission floats a few candidate explanations, none very persuasive.

Such salami-slicing can also have unintended consequences. To its credit, the FCC does ask commenters to describe the possible consequences of classifying Internet connectivity as a telecommunications service. But all of the business and technical consequences of such reclassification may be impossible to perceive at this point. And mistakes now could be hard to correct later.

Can the FCC Prevent “Un-forbearance”?

There is considerable agreement that full-blown traditional Title II regulation of Internet access would be unduly burdensome on ISPs, and ultimately harmful to the Internet. A key element of the “Third Way” solution is intended to limit some of that burden. That is, the Third Way includes a promise to forbear from applying most of the Title II statutory obligations to Internet connectivity.

A swell idea. But just how permanent could that promise be?

ISPs remain concerned that some future Commission could alter, or scrap entirely, the decision to forbear. Could the Genachowski Commission establish a policy of forbearance that would be immune from reversal at some point down the line? There is precious little precedent on these issues, although normally general administrative law contemplates flexibility to allow agencies to adjust rules and policies to deal with changed circumstances. Still, in the NOI the Commission seeks comment on possible provisions to “establish a heightened standard for justifying future unforbearance.” Crafting such provisions will take great creativity – and even if a plausible approach is identified now, it’s difficult to imagine that future Commissions, and (perhaps more importantly) future courts, will necessarily feel themselves permanently handcuffed by today’s Commission.

Make no mistake: today’s Commission is acutely aware of the problem. The NOI describes a sort of worst-case-scenario for ISPs. It runs like this. First, the FCC classifies Internet connectivity as a Title II service but forbears from applying many of the Title II obligations. Someone appeals the order, as someone usually does. The reviewing court upholds the Title II classification, BUT vacates some or all of the forbearance, thus requiring the FCC to regulate more heavily than the current FCC thinks is necessary or appropriate.  (Yes, a court could do that, if it thought the statute requires it.) The result: The Internet would be subject to precisely the full-tilt Title II burdens that the Genachowski Commission hopes to avoid through the Third Way.

In an attempt to plan ahead, the FCC asks how it might deal with that scenario. One option, of course, would be to undo the Title II classification, much as the proposed Title II regime would undo earlier orders that combined transmission and information services into a single offering under Title I. But the undoing would be neither easy nor quick, and would itself be subject to judicial review. Just the possibility of these events creates a degree of regulatory uncertainty that many people (including Commissioners McDowell and Baker) fear will limit crucial investment in the nation’s broadband network. But  the FCC’s current route to Net Neutrality runs straight through this particular minefield.

The NOI asks some hard questions. We look forward to seeing the FCC’s answers.

[Post-script: As this blog was being prepared for posting, the press reported that a number of top FCC officials have recently met with representatives of AT&T, Verizon, Google, Skype and the National Cable & Telecommunications Association – and possibly others – in what were referred to as “negotiations” looking toward a possible compromise that would enable the FCC to enforce Net Neutrality rules without having to overhaul the regulatory rationale for such rules. While not unheard of, this sort of gathering this early in a proceeding is certainly unusual.   It will be interesting to see how much of the resolution to this complex regulatory problem will be negotiated among the parties, and how much will be imposed by the Commission.]

A federal agency like the FCC has only the powers that Congress’s statutes bestow on it. Included in the Communications Act are two “titles” arguably relevant to broadband Internet regulation.

Title I lays out the FCC’s general powers, among them, the power to “perform any and all acts, make such rules and regulations, and issue such orders . . . as may be necessary in the execution of its functions.” When the FCC tried to proceed under this provision against Internet provider Comcast for selectively blocking customers’ content, the federal appellate court in D.C. slapped it down, with a ruling that the language is insufficient to support network neutrality regulation. See our further analysis here.

Title II, in contrast, originated in 1934 as a vehicle to regulate telephone companies. Because telephony was then a monopoly, Title II includes detailed provisions allowing the FCC to regulate rates and terms of service, among other things. Most of those are now obsolete, even as to telephony.

With the Comcast court having taken Title I off the table, any FCC effort to regulate network neutrality must turn to Title II. There, though, the FCC is hobbled by its own prior actions. Its 1976 Computer II decision limited Title II regulation to the transport of data, and excluded content from Title II coverage. And then, in a series of rulings through the early 2000s, the FCC removed Internet broadband delivery from Title II altogether.

In response to the Comcast decision, and as reported here previously, and also here, the FCC is now contemplating a small step backwards. It has released a Notice of Inquiry asking for comment on its proposed “third way” approach: to re-regulate the transport component of broadband Internet service, but to impose only those rules needed to implement “fundamental universal service, competition and small business opportunity, and consumer protection policies.” This included network neutrality.

The proposal is extremely controversial, here in Washington (like pretty much everything else, here in Washington). Two of the five FCC Commissioners argued against it, as will most Internet providers. Many others will argue in favor. (Want to tell the FCC what you think? Drop us an email and we’ll tell you how.)

And now stay tuned for the next (but almost certainly not the final) episode of “The Third Way”.

Just as Sisyphus did not undertake his own chore voluntarily, the FCC’s repeated efforts to review its media ownership regulation have been mandated by Higher Authority – in this case Congress which, in the 1996 Telecom Act, ordered the Commission to review these rules every four years to determine if they remain “necessary in the public interest as a result of competition”. Amid persistent, often acrimonious, controversy, the Commission has dutifully done so, and is now doing so again – even though the results of its previous reviews still aren’t final.

The inquiry this time is extremely broad, requesting comment not only on existing rules but also on the “fundamental questions” related to media ownership regulation, the answers to which it hopes will guide the rest of this proceeding. Acknowledging the “profound” changes in the media marketplace in recent years, the NOI assures readers that the Commission has “no preconceived notions” about the ultimate outcome of the proceeding. 

The fact that the Commission chose to kick off this proceeding with an NOI probably means that it’ll be quite some time before we can expect to see any new rules adopted. The last ownership review began with a Notice of Proposed Rulemaking (NPRM) in July, 2006, and the FCC’s decision wasn’t released until February, 2008 – and though that decision was promptly appealed, briefing of the case in the Court of Appeals has still not wrapped up, which means that a decision in that forum is still at least months away. 

This time, the Commission will need to evaluate comments and reply comments on last week’s NOI before it even issues an NPRM. (By issuing an NOI, the Commission may be attempting to avoid some of the criticism directed at its handling of the 2006 proceeding, i.e., that the NPRM there failed to propose specific rules. In the NOI, the Commission has promised that the NPRM it eventually develops from comments on the NOI will “invite comment on proposals for regulations”.)

In addition to input on the ownership rules themselves, the NOI requests comment on the “analytical framework” to be used in evaluating those rules – like what factors should be considered in determining if those rules advance its public interest goals and, if they don’t, what rules would. Noting its continued commitment to the public interest goals of competition, diversity, and localism, the Commission questions how those goals should be defined and whether there are other goals it should attempt to achieve through its ownership rules. 

The five particular rules are at issue in the quadrennial review are: (1) the local television ownership rule; (2) the local radio ownership rule; (3) the newspaper/broadcast cross-ownership rule; (4) the radio/television cross-ownership rule; and (5) the dual network rule. The NOI also requests comment on whether the Commission has any authority to revise the national television ownership limit, currently set by statute at 39 percent. 

The bulk of the NOI is devoted to discussing how to define the Commission’s policy goals in relation to its media ownership rules.  The NOI identifies four groups of “participants in the media marketplace” – consumers, advertisers, content creators, and “platform owners” (i.e. broadcasters, newspapers, cable systems) – and requests comment on how the rules, and the Commission’s policy goals, affect each.

The NOI also questions how to relate the FCC’s policy goals (localism, competition, and diversity) to the media ownership rules. In particular, the Commission wants to know how: 

• to define the policy goals of localism, competition, and diversity;
• to promote those goals in the current media marketplace;
• these goals are relevant to each of the four types of marketplace participants;
• to measure whether these goals are met by any given ownership structure;
• to tell when a goal has been met; and
• to balance the three policy goals if they are in conflict.

And the Commission also asks whether new or revised rules would help to meet these goals

Evidencing the Genachowski Commission’s oft-stated desire to be more “data-driven”, the NOI also questions whether its policy goals are quantifiable and whether any studies or projects should be examined or commissioned to analyze the ownership rules. 

In addition to the very broad invitation for comments on amorphous policy issues relating to ownership regulation, the NOI poses a number of more specific questions for each of the three stated policy goals.

Competition: The Communications Act specifically ties the Commission’s review of its media ownership rules to competition. So the NOI asks how competition should be defined in today’s media marketplace and how to determine whether combined ownership of multiple outlets helps or harms competition. Other concerns on the table include: 

• how to define relevant geographic and product markets, since the Commission will be evaluating competitiveness of markets, not individual firms. Also, how should other factors, such as competition from the Internet and the current financial difficulties facing traditional media, affect this analysis.
• how should “consumer welfare” (in the FCC’s view, the true goal of increased competition), be measured since traditional price competition may not apply to a free broadcast product.
• whether, and if so, how, to assess competition between different media platforms, including competition for content, competition for ownership of media outlets, and competition in advertising prices. 
• the impact of the ownership rules on specific demographic groups, including minority ownership of media outlets and the provision of programming serving particular demographic groups.  

 Localism: The NOI also seeks comment on how to define localism in the context of the media ownership rules and how to promote it, however it is ultimately defined. If localism is defined (as it traditionally has been) by analysis of locally responsive programming, what types of programming should count in this analysis, and how can they be quantified? If local consumers are satisfied by their local media, would this be sufficient to show that the localism goal is being met? Are there other ways to measure localism, such as by looking at local programming inputs (i.e., local hiring or spending on local news). And on a broader scale, do locally produced content or local ownership actually matter? Finally, and potentially very importantly, a footnote requests comment on the “ease and usefulness” of the broadcast license renewal process, suggesting that the Commission could attempt to address that process in the context of this ownership review, as various public interest groups have urged it to do for some time.

Diversity: The NOI requests comment on how to define diversity. It identifies five historical approaches to diversity – program diversity, viewpoint diversity, source diversity, outlet diversity, and minority and female ownership – and questions the relative importance of each and how to measure them. The NOI seeks comments on the tentative conclusion that the relevant geographic market in which to evaluate diversity is the area in which “all citizens have [roughly] the same range of media choices”. Also, should diversity be measured looking at each media platform individually or by evaluating some combination of outlets?

The Commission recognizes that there may be some tensions between and among these three policy goals, and questions how any conflicts among them should be resolved. Also, are there any additional policy goals that should be considered? And how do the existing ownership rules serve these goals? Just to be sure that nothing is overlooked, the NOI also asks for comment on any other pertinent issues. 

With respect to the five particular ownership rules under consideration, the Commission raises a number of relatively specific questions, including: 

Local television ownership rule: Are the “eight voices” test and/or the “top four” restriction still relevant and, if so, how they should be evaluated? Should compliance still be evaluated using television contours and, if so, what contours to use in the post-DTV transition world?   If the rule is retained, should the failed/failing station waiver criteria also remain in place? 

Local radio ownership rule: Does it continue to make sense to retain separate sub-caps for AM and FM radio stations? How, if at all, should such factors as LPFM stations, competition from other media, or market share be considered in crafting a local radio ownership rule?

Newspaper/Broadcast Cross-Ownership: Would relaxation of the newspaper/broadcast cross-ownership rule help newspapers survive in a way that would increase local news and information? If the rule were to be retained, what types of waivers should be available? If the rule were to be relaxed, what factors should be examined in determining when to allow combinations – and in particular, should market share be considered and how should voices in the market be measured? Finally, should radio and television be treated differently for purposes of this rule?

Radio/Television Cross-Ownership: Should (and if so, how) the existing rule for counting voices in the market be adapted to account for recent technological and competitive developments? How should the Commission justify a decision to retain the current numerical limits and under what circumstances should waivers be available? 

Dual Network Rule: Should the dual network rule continue to specifically prohibit mergers between ABC, CBS, NBC, and Fox?  If it’s retained at all, should the rule be revised to more generally target mergers between networks with specific characteristics? If so, what should those characteristics be?

Finally, the NOI questions the type of regulatory regime that should be implemented if the existing rules are revised. Alternatives include bright-line rules, a case-by-case approach, or some kind of hybrid approach – and the FCC asks for comment on the relative merits of each. In an echo of its 2003 revision of the rule, the Commission also asks for comment on whether it should replace its existing rules with a “broad cross-media approach” to regulation.

Lastly (and really not at all surprisingly), the Commission asks how, if at all, its National Broadband Plan is relevant to media ownership.  

Notably absent from the NOI is any significant discussion of the appeals of the Commission’s 2008 ownership order that are currently pending in the U.S. Court of Appeals for the Third Circuit. The outcome of that proceeding could obviously have a significant impact on the Commission’s regulation of media ownership. Media parties and public interest parties filed briefs with the Third Circuit on May 17. The Commission’s brief should be filed in the coming weeks, and should shed some additional light on the current Commission’s views on the underpinnings of its media ownership regime. Although the Commission in the NOI does not specifically address the pending Third Circuit appeal, the questions raised there are clearly relevant here.    

While the Commission can’t be faulted for launching this NOI – it is, as noted above, required by Congress to do so – the utility of the exercise is, at best, questionable. Why, after all, should the agency undertake an analysis of ownership rules the validity of which has still not been resolved by the courts? And more fundamentally, what purpose is served by opening yet another proceeding in which the Commission is attempting to come up with specific regulations to address broad issues and policies which the Commission has still not been able to define? One obvious example – the Commission identifies “localism” as a basic “policy goal”, but the Commission doesn’t define “localism” and, instead, solicits comments on how to define it. That’s bad enough, but let’s not forget that, in 2004, the Commission adopted an inquiry focused specifically on “localism”. That proceeding (MB Docket No. 04-233) is still pending.  And yet, here comes the Commission again, asking the same fundamental, definitional questions.

How can the Commission be expected to rationally develop rules to address basic policies which the Commission has not defined, despite the fact that it’s been trying for years to do so? And further complicating the problem is the fact that the impact of media on the public is subject to constant change as a result not of governmental regulation, but technological change and private consumer choice – neither of which is readily controlled by the government. That means that, in attempting to formulate ownership rules, the FCC is shooting at a constantly moving target. And since the time-line for adoption of ownership rules is measurable in years (as we have seen in the past two ownership review proceedings), the likelihood that the Commission will be able to formulate rules in 2010 that will be meaningful in, say, 2013, appears relatively small.

Nevertheless, the FCC, like Sisyphus, starts to roll its rock back up the hill because that’s its fate.

The filing dates for comments and replies have not been set, but check back here for updates; if there’s anything you ever wanted to tell the FCC about broadcast ownership, this is your chance.

 Both Chairman Genachowski and the FCC’s  General Counsel have made public arguments for such an approach. Also, it appears unlikely that the FCC could accomplish net neutrality under a Title I theory after the Comcast decision (though some ISPs have asserted it can be done). And everyone, including the Chairman and other net neutrality advocates, agree that full-blown Title II regulation would be excessively and inappropriately burdensome.

Some of us here are mystified by the FCC’s determination to move forward with the NOI, in light of recent letters to Chairman Genachowski from 74 House Democrats and 37 Senate Republicans opposing the “third-way” approach. They demand the FCC allow Congress to come up with a legislative solution. Is the FCC trying to force Congress to act quickly? Or does it think Congress won’t act at all? 

Also notable is the FCC’s release of an NOI, rather than a notice of proposed rulemaking (NPRM) setting out specific proposals for specific rules. The use of an NOI suggests the Commission is acting tentatively (or wants to appear that way). This is probably appropriate, in light of bipartisan resistance from Congress, as well as from ISPs. Moreover, the NOI calls into question the status of the FCC’s October 2009 NPRM on “Open Internet”/net neutrality rules.  That NPRM was premised on the same Title I “ancillary authority” that the Comcast decision disfavored. Will the NOI merely look to the jurisdictional question, with the FCC plugging that answer into its existing Open Internet substantive proposals? More likely, the substance of those proposals will have to evolve in light of the jurisdictional resolution. The new “third-way” Title II context may require tweaking the six Open Internet rules proposed last October, or even dropping some of those and adding new ones.

In any case, given the strongly held positions both in favor of and opposed to the FCC’s regulation of Internet traffic management, the NOI will certainly trigger pitched battles over the existence or non-existence of a statutory basis for net neutrality regulations.   The battlefield has shifted, but the fighting will continue.

The first notice, the Fourth Further Notice of Proposed Rulemaking, seeks to update the CableCARD rules and policies. The CableCARD is a device that, once installed into retail devices such as television or retail navigational devices (think TiVo), eliminates the need for a separate set-top box.   Section 629 was part of the Telecommunications Act of 1996, and it took seven years for the industry (MVPDs and manufacturers) to develop a standard for the device. However, the standard adopted in 2003 did not address two-way communications such as Video on Demand, and the device requires professional installation. 

In the National Broadband Plan, the Commission indicated that it would examine whether there should be changes to the existing rules to encourage the greater use of CableCARD devices.   In particular, the Commission is seeking comment on rules that would: (i) ensure that devices are able to access multi-stream video programming; (ii) make the pricing, billing and installation practices of CableCARD equipment transparent and similar to those for leased set-top boxes with the CableCARD already installed; and (iii) encourage the rapid development of new retail CableCARD devices. 

While the Commission recognizes that the CableCARD regime is somewhat outdated, it seeks to make these changes to its rules as an interim measure while it implements what it believes to be the next generation of devices, namely, the AllVid device. The second notice, a Notice of Inquiry, is intended to jumpstart the quest for such a device. The AllVid approach, still merely a “concept” developed by the Commission in the National Broadband Plan, would serve as a gateway between consumer premises equipment such as DVRs, computers, and televisions on one side, and the proprietary systems of MVPDs on the other side. While the Commission acknowledges that such a “gateway” device is in concept form only, it believes that the adoption of this concept would lead to a nationwide interoperability standard like Ethernet and the standard phone-jack of yesteryear.

Under the AllVid concept, MVPD’s would be able to deliver their services directly to a small device, which would connect to the navigational devices such as computers, DVRs, televisions, and gaming systems. The MVPD would not have the headaches of working with individual device manufacturers, and the Commission believes that this concept will spur development of a retail market for new devices without the need for the manufacturers to deal with the MVPDs. Just as fax machines and answering machines could perform different services so long as they could be plugged into the standard RJ-11 phone jack, the Commission believes that AllVid devices will free up parties on either end of the gateway device to develop new and innovative methods for delivering service to consumers.

The Commission envisions that this device could be installed either on the back-end of a television, or as a device to which multiple devices would be attached. But, as with most “concepts”, the Commission is seeking comment on almost all elements of how this device will operate, including communications protocols, content protection requirements, and whether the consumer market demands that these devices should be developed by the Commission. One potentially sticky aspect of the proposal is that the Commission envisions that there would be a uniform channel guide and navigational features across all devices. While the Commission notes that there is an inherent conflict between standardization and innovation, it does appear to favor a standardized user interface that would improve customer service and ease of use.

Since this proceeding is at the Notice of Inquiry stage, there is very little meat on the proposals offered by the Commission. Instead, much like the National Broadband Plan, the Commission has teed up the subject matter, and is interested in receiving comments on all aspects of the proposal. On the other hand, combined with the adoption of the Notice in the CableCARD proceeding, it is clear that the Commission believes both that (a) the MVPDs and manufacturers have not fully met the goals set forth in Section 629 of the Communications Act, and (b) some sort of Commission-directed nudge is necessary. 

Whether or not the final result is the adoption of the equivalent of the MVPD phone-jack is unknown, but we will keep you up-to-date as the proceedings move forward.

In general

• metrics for evaluating innovation and investment in the wireless sector
• the FCC’s role in supporting and encouraging innovation and investment
• high-level trends driving innovation and investment in the “wireless ecosystem”
• how wireless services are used in innovative ways (as in health care, energy conservation, education, and public safety)

Managing spectrum

• “repurposing” spectrum for innovative uses
• mechanisms for access to spectrum (licensing procedures, unlicensed use, etc.)
• alternative auction schemes for spectrum
• mechanisms for secondary markets in spectrum
• how to assess “harmful interference” in protecting one service from another
• alternative dispute resolution techniques or negotiated rulemaking for speeding interference disputes over new technologies
• whether the FCC should regulate receiver performance
• measurements of spectrum efficiency

Spectrum sharing

• whether the FCC should issue secondary/underlay licenses
• promoting dynamic spectrum sharing
•  “cap and trade” for rights to cause interference (up to some limit)
• whether a publicly accessible database should give technical details of a licensee’s operations to facilitate sharing
• whether impending technical advances can promote spectrum sharing
•  whether the FCC should try to reduce the noise floor and, if so, how

               Networks and devices

• whether new network architectures can spur innovation
• whether different procedures for tower siting could speed deployment
• whether distributed antenna systems can make innovation easier
• whether new kinds of devices will cause unexpected regulatory problems
• whether the FCC should alter the equipment certification process to promote innovation
• how technical standards affect innovation.

The NOI is an ambitious undertaking. It remains to be seen whether the proponents of “business as usual,” who are both numerous and well-funded, will try to derail these ideas into the yawning pit of needed reforms that just never happen.

Comments are due on September 28 and reply comments on October 12.