Thursday, January 26, 2012
Tuesday, January 24, 2012
Tuesday, January 17, 2012
Happy Birthday to my dear friend and fellow MMTC Board member, Everett Parker, born today, January, 17, 2012. Not many of us will ever reach our 99th birthday. Even fewer will have the generational impact upon vital and complex communications policy discussions that Everett has had – and continues to have. But most importantly, Everett also translated thoughts into action: strategically, energetically, and effectively. Thank you for your years of public service – most often for the poor, the voiceless, and the forgotten.
Happy Birthday, Everett, and I am honored to have had the opportunity to know and work with you at the FCC and beyond!
Monday, January 16, 2012
Thursday, January 12, 2012
The FCC is now considering a petition asking it to declare that Philadelphia's city ordinances restricting satellite dishes on family dwellings are preempted by federal rules. Those ordinances may place unreasonable burdens on direct broadcast satellite (DBS) dish installation, both for DBS consumers and dish installers, and, if so, they should be preempted.
But the significance of the petition extends far beyond Philadelphia. If other cities were to follow with their own unreasonably cumbersome dish restrictions, this could undermine the attractiveness and competitiveness of DBS service and thereby harm all consumers of video services. Moreover, the FCC's authority under the Commerce Clause to prevent states and localities from adopting unreasonable restrictions that interfere with the siting and construction of cell towers, microwave facilities, and other radio frequency devices may be weakened if the agency fails to act when localities impose unreasonable restrictions.
In today's video marketplace, DBS provides a vital role as a competing provider of video services. But in order for satellite TV providers to compete with cable, telco video providers, and online-delivered video, consumers of DBS services need to be able to install dishes on their property without unreasonable restrictions. So in Section 207 of the Communications Act, Congress granted the FCC authority to preempt county, city, or even landlord restrictions, on video-receiving devices like TV antennas and satellite dishes.
The FCC's "over-the-air-reception-device" (OTARD) rule preempts restrictions on the installation of dishes that "impairs the installation, maintenance, or use" of antennas or dishes that are one meter in diameter or less and located in areas within the exclusive use or control of the consumer. OTARD defines an impairing restriction as one that: "(i) Unreasonably delays or prevents installation, maintenance, or use; (ii) Unreasonably increases the cost of installation, maintenance, or use; or (iii) Precludes reception or transmission of an acceptable quality signal." Non-impairing restrictions must be applied in a non-discriminatory manner. Also, FCC precedents put the burden of satisfying OTARD on the enforcing entity.
In November 2011, Philadelphia imposed a thicket of restrictions on dish installations that, in several respects, appear to conflict with OTARD and undermine federal policy. The ordinances, for instance, would restrict placement of dishes on certain balconies and patio areas – areas most certainly within home dwellers' exclusive control – where the city believes that better alternative locations are available.
Furthermore, ordinance restrictions on placement of dishes on exterior walls of buildings in effect treat exterior walls as categorically beyond the exclusive control of the consumer. But many landlords and condo associations consent to tenants' control over exterior walls for dish installation in lease agreements and condo bylaws. And in several aspects, Philadelphia's ordinances appear to shift the burden of proving that dish placement and registration requirements are satisfied to DBS consumers or dish installers to demonstrate the material delay, signal reduction, and significant additional cost considerations. But OTARD puts the burden on the restricting entity, not the consumer.
Federal preemption of state and local police power regulations always involves delicacies and should be handled with care so as to respect legitimate state and local authority, especially with respect to public safety concerns. Yet, in important respects, Congress has authorized the FCC to preempt local restrictions that have the effect of impairing interstate commerce in competitive technology markets. In November 2009, for instance, the FCC exercised its authority under Section 332(c) to preempt local restrictions responsible for blocking or unreasonably delaying cell tower permit approvals to the detriment of the interstate commercial market in wireless services.
Congress also recognized the interstate commercial nature of nationwide DBS services. Congress sought to protect the rights of consumers to engage in interstate transactions with DBS providers, entrusting the FCC with exclusive regulatory authority over DBS. And Congress expressly empowered the FCC to prohibit local restrictions on dish installation that could otherwise pose barriers to DBS offering consumers an attractive competing video service. So it is incumbent on the FCC to take decisive measures to carry out Congress's objectives.
Onerous and intrusive local restrictions on satellite dish installation and their use interfere with the federal scheme for regulating DBS service. Restrictions that unreasonably burden dish installers and DBS consumers make DBS service a less attractive video service option. In order to protect the existing competitive market for the provision of video services, the FCC should act to ensure dish installation – and therefore DBS services – remains free from excessive and unwarranted restrictions imposed by localities. In particular, the FCC should address the kinds of problems exemplified by Philadelphia’s ordinances, lest it permit unreasonably burdensome restrictions in one major city to be replicated in cities across the nation.
A declaratory ruling by the FCC will clarify what kinds of local restrictions on dish installation are prohibited and what kinds of protections property owners and DBS consumers enjoy. In so doing, the agency will help protect consumer choice and a competitive video market. And, more broadly, the FCC will show its willingness to exercise agency authority under the Communications Act and the Commerce Clause to ensure that the channels of interstate commerce remain open to competitive technologies.
Wednesday, January 11, 2012
You should read his piece in its entirety, but here is his conclusion in the last paragraph:
Tuesday, January 10, 2012
Probably only telecom groupies realize the monumental efforts of the FCC over the past year to reform the $7 billion dollar Universal Service Fund (USF). The effort culminated in a voluminous order focused on the High Cost Fund that was adopted on November 18, 2011. And, while there will certainly be legal challenges to the USF order, it is no less an important step for the agency.
The FCC commissioners and staff should be proud of taking a stand and finally curtailing what has been one of the least efficient and certainly overly costly subsidy programs funded by taxpayers. The USF program has been a poster child for corporate welfare, and it has needed reform for decades.
On the other hand, the FCC now has the last piece of overall USF reform to finalize: the portion of the fund that supports qualified Low Income persons. And while I have been a vociferous supporter of reforming universal service for years, I hope that the Commission doesn't throw the baby out with the bathwater. While many have criticized the Low Income Fund for "waste, fraud and abuse" – indeed, I agree all government programs should constantly improve their efficiencies and implement procedures to prevent fraud – the industry has stepped forward with numerous solutions which already have solved most of these criticisms, and more reforms can be implemented.
But the bottom line is that low income Americans are still facing extremely high levels of unemployment and the longest recession since the Depression.
The low income fund is just that: a fund only for low income persons; only for the poorest of the poor.
In many ways, it is the part of the fund that most embodies what Congress intended by creating a fund that ensures all Americans have the opportunities available in a nationwide communications network. Congress indeed foresaw that communications would connect people to jobs, healthcare, schools, and, of course, their families. Today that connectivity should include broadband, and the Lifeline could again be the safety net to insure that no American – no matter how poor – is left behind in the Digital Age.
And here's an important point about the Lifeline program that should be emphasized: The fact that the program exists, as a means of targeting subsidies to those truly in need, makes it easier to argue convincingly that those parts of the overall USF program which distribute subsidies in a much more indiscriminate fashion, such as the high-cost program, should be subject to hard caps and gradual reductions.
In other words, the existence of the Lifeline program ought to be persuasive in arguing that subsidies that support service to the wealthy residents of Aspen and Jackson Hole should continue to be phased out.
My hope for the New Year is that the FCC recognizes the important – indeed, the critical – role that the Lifeline program plays in helping to ensure communications access for the truly poor. Rather than capping the low income program, we should be ensuring that those in need have access to this vital lifeline.
Thursday, January 05, 2012
It is tempting to succumb to the notion that Internet access, along with access to a bunch of other things, are human rights, but Cerf makes a persuasive argument that this is the wrong way to think about rights and the technologies that enable facilitate the exercise of some rights.
Here is the way Cerf, Google's chief Internet evangelist, put it:
"The best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at any particular time. Indeed, even the United Nations report, which was widely hailed as declaring Internet access a human right, acknowledged that the Internet was valuable as a means to an end, not as an end in itself."
I say, well put.
The bill resulted from the experience of municipalities in North Carolina getting into the telecom business in cities and towns in which the same services already were being provided by Time Warner Cable, AT&T, and CenturyLink.
Rep. Avila details the municipalities' money losing experiences -- really the taxpayers' money losing experiences since it is the taxpayers that ultimately foot the bill when the city-owned telecom businesses fail.
As Rep. Avila recounts the experiences of the N.C. towns, she sums up: "The facts were not pretty."
I don't have a link to the article, but if you get the Insider ALEC, Rep. Avila's piece is well-worth reading.
Wednesday, January 04, 2012
When it was launched, I said I thought that the collaborative, seed-bed concept behind Gig. U was very promising and innovative, and I still think so.
Hopefully, 2012 will be a year in which Gig. U moves further along the continuum from conception to implementation to results.
Monday, January 02, 2012
During the holiday period, I also devoted considerable time to thinking about the Free State Foundation's ongoing efforts to spur reform of the nation's communications laws and policies. (I know. Not exactly light thinking, like, for instance, thinking about whether to go see Meryl Streep in The Iron Lady before catching up on missed episodes of Glee).
In Hayek's famous work, The Use of Knowledge in Society, he explains the important role that dispersed bits of incomplete and frequently contradictory knowledge -- that is, information possessed by individuals acting on their own in response to price signals – play in the working of free markets.
To show why this is so, first, I want to set forth a few key excerpts from The Constitution of Liberty that fairly capture overarching central themes of Hayek's work:
- A proper role for government is the protection of property and the enforcement of contracts.
- The free market, not government officials, should dictate the quantities of goods and services produced and the prices at which they are sold because the decisions of government officials necessarily will be arbitrary in relation to those of the market.
- Even if they are well-intentioned, administrative agencies are, by definition, almost always overzealous in pursuing what they claim as the public good at the expense of individual freedom.
- The costs imposed by new regulations almost always are underestimated, while new developments are not fully anticipated.
So, as we continue our efforts at the Free State Foundation to spur free market-oriented reform of our nation's communications law and policies, we will do so with Hayek's themes and principles in mind.
- Prevent broadband services from being subjected to public utility-style regulation and rolling back such regulation where it already has occurred, for example, with respect to the FCC's imposition of net neutrality mandates. See my recent commentary, "Build Back That Broadband Wall."
- Free up additional spectrum through authorization of incentive auctions and removal of current FCC rules that unnecessarily restrict licensees' freedom to use their spectrum more flexibly and to dispose of their spectrum more easily through workable, transparent secondary markets.
- Eliminate or curtail outdated video regulations such as the FCC's program carriage rules. In a recent FCC administrative law judge's decision, the program carriage regulations were (mis)used by the judge to arbitrarily abrogate negotiated contract rights in mid-term, and substitute the government's judgment concerning program carriage for that of a private business operator's, all the while disregarding First Amendment free speech rights regarding program content selection. See my recent commentary, "The Tennis Channel Case: No Mere Foot Fault."
- Eliminate, as contemplated by the newly-introduced "Next Generation Television Marketplace Act," the obsolete regulatory regime in which the government requires that multichannel video operators "must carry" certain kinds of channels with particular kinds of program content, restricts the number and kinds of media outlets that may be commonly owned, and establishes a compulsory license regarding retransmission of certain kinds programming by cable operators, all the while offending free market and free speech principles. For a good short primer on why the "Next Generation Television Marketplace Act" warrants a positive reception, see the paper, "The FCC and the Unfree Market for TV Program Rights," by Free State Foundation Academic Advisory Board Member Bruce Owen.
- Reform the FCC's broken merger (transaction) review process in which the agency frequently exercises its largely unfettered discretion under the indeterminate public interest standard to impose conditions on the merging parties that are unrelated to the transaction before the Commission and which are not justified by competition analysis. Nothing has changed to improve this "regulation by condition" process of coerced volunteerism since I first wrote about the problem in "Any Volunteers" in 2000.
- Oppose efforts to get the International Telecommunications Union's World Congress on Information Technology (WCIT–2012), to be held in October 2012, to adopt policies that, under cover of the ITU, sanction control and regulation of the Internet in various ways, including regulation of transmissions and content that governments deem offensive. See FCC Commissioner Robert McDowell's recent speech warning about those advocating at the WCIT for a new regime that "would create a new overarching layer of international regulation."
This is the surest – and, in the end -- the only sure way to advance prosperity and protect liberty at the same time.