April 7, 2011 (News from the FCC Meeting)

BENTON'S COMMUNICATIONS-RELATED HEADLINES for THURSDAY, APRIL 7, 2011

NEWS FROM THE FCC MEETING
   FCC Takes Action on Data Roaming to Expand Consumers' Access to Mobile Broadband - press release
   FCC Promotes Robust, Affordable Broadband by Reducing Costs & Delays in Access to Infrastructure - press release
   FCC Explores Ways to Further Strengthen the Reliability of America's Communications Networks - press release

INTERNET/BROADBAND
   Rep Walden questions delay in publishing network neutrality rules
   Genachowski to Walden: Network neutrality won't ban Koshernet
   Wanted: A Tax Code for the Digital Age - analysis

CONTENT
   YouTube Should Not Be Required To Use Software Filters, Public Knowledge Tells Court - press release

WIRELESS/SPECTRUM
   Why Congress Should Not Micromanage Incentive Auctions - analysis
   Study: AT&T, not Apple, is to blame for dropped iPhone 4 calls

PRIVACY
   No More Privacy Paranoia - analysis
   Feds take huge step to protect student privacy [links to web]

WHAT NEWS WAS
   March 28-April 1: The Social Media Agenda--From Supreme Court Rulings to Ancient Books - research [links to web]

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NEWS FROM THE FCC MEETING

MOBILE DATA ROAMING
[SOURCE: Federal Communications Commission, AUTHOR: Press release]
On April 7, 2011, the Federal Communications Commission adopted an Order that requires facilities-based providers of commercial mobile data services to offer data roaming arrangements to other such providers on commercially reasonable terms and conditions, subject to certain limitations. The move is expected to promote increased consumer access to nationwide mobile broadband service. Consumers expect mobile data services that will allow them to remain connected wherever they go; a data roaming rule will help ensure that consumers' services are not interrupted and that coverage is available on a competitive basis. The widespread availability of data roaming arrangements will allow consumers with mobile data plans to remain connected when they travel outside their own provider's network coverage areas by using another provider's network. This promotes connectivity and nationwide access to mobile data services such as e-mail and wireless broadband Internet access. The rule promotes investment in and deployment of mobile broadband networks, consistent with the recommendations of the National Broadband Plan. This new investment in broadband will increase competition and benefit consumers; without data roaming guarantees, consumers will be limited in their choices, especially in rural areas.
To resolve any data roaming disputes, parties may file a petition for declaratory ruling under Section 1.2 of the FCC's rules or file a formal or informal complaint depending on the circumstances specific to each dispute. Disputes would be resolved on a case-by-case basis taking into consideration the unique facts and circumstances in each instance. Commission staff may require both parties to provide their best and final offers.
The FCC implemented a data roaming obligation pursuant to its authority under Title III of the Communications Act, which provides the Commission with authority to manage spectrum and establish and modify license and spectrum usage conditions in the public interest.
FCC Commissioners Robert McDowell and Meredith Baker dissented from the Order. Commissioner McDowell said, "Even though the order attempts to explain otherwise, in mandating the provision of data roaming and establishing a means for dispute resolution that includes adjudicating terms and rates, my colleagues in the majority are, in essence, imposing a Title II common carrier regulatory regime in violation of Title III of the Communications Act and contrary to Commission precedent."
Commissioner Baker said, "[I]n imposing these data roaming obligations on mobile broadband services, we exceed our authority and impose rules of common carriage that are impermissible under our statute. Section 332(c)(2) of the Communications Act states in no uncertain terms that "a private mobile service [like data roaming] shall not . . . be treated as a common carrier for any purpose under this Act."
benton.org/node/55473 | Federal Communications Commission | 2nd R&O | Chairman Genachowski | Commissioner Copps | Commissioner McDowell | Commissioner Clyburn | Commissioner Baker
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NEW POLE ATTACHMENT RULES
[SOURCE: Federal Communications Commission, AUTHOR: Press release]
On April 7, 2011, the Federal Communications Commission reformed its pole attachment rules to streamline access and reduce costs for attaching broadband lines and wireless antennas to utility poles across America -- a key component of broadband infrastructure. Based on successful models in a number of states, the FCC's Pole Attachments Order balances the need for timely access to poles with the need to ensure the safety of workers and the reliability of our electric grid. The FCC also opened an inquiry into how the Commission can work with other government entities and the private sector to improve policies for access to other physical spaces where wired and wireless broadband can be deployed, including roadways and other rights of way, and locations for wireless facilities. This sets the stage for further acceleration of broadband deployment in the future. The cost of deploying broadband networks to consumers and businesses depends significantly on the time and expense service providers must incur to access poles and other essential infrastructure. As part of its strategy to expand access to robust, affordable broadband, the National Broadband Plan recommended that the FCC take steps to reduce the cost and time required for network providers to access utility poles and rights of way.
benton.org/node/55477 | Federal Communications Commission | Order | NOI | Chairman Genachowski | Commissioner Copps | Commissioner McDowell | Commissioner Clyburn | Commissioner Baker
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NETWORK RELIABILITY
[SOURCE: Federal Communications Commission, AUTHOR: Press release]
The Federal Communications Commission took another step to implement the recommendations in the National Broadband Plan by adopting a Notice of Inquiry (NOI) seeking public comment on ways to further strengthen the reliability and resiliency of America's communications networks. The recent tragic earthquake and tsunami in Japan are unfortunate, tragic reminders of the importance of maintaining communications networks that offer reliable and resilient service in the face of significant equipment or system failure, particularly during major emergencies.
Communications services, including broadband technologies, play a critical role in all elements of the Nation's society and economy. Overall, as the communications infrastructure migrates from older technologies to broadband technology, critical communications services will travel over a communications network infrastructure that may or may not be built to the high standards of legacy systems. The potential for differences in service reliability may be a major source of concern for the public safety, health care, energy and financial sectors, and more generally for consumers and businesses across America.
The action builds on the FCC's ongoing efforts to help ensure the reliability and resiliency of communications for the public, government, emergency responders, healthcare providers, and providers of other critical services such as electric power during natural or man-made disasters. In April 2010, the FCC sought comment on the survivability of communications networks when there is direct physical damage or failure of network equipment, or network overloads.
The NOI seeks comment on four specific areas of concern:
Current efforts by industry to ensure continuity of communications service during major disasters;
Existing reliability and resiliency standards for broadband communications networks;
The FCC's role in promoting the reliability, resiliency and continuity of communications services; and
The FCC's legal authority to act to ensure the reliability, resiliency and continuity of communications services.
benton.org/node/55475 | Federal Communications Commission | NOI
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INTERNET/BROADBAND

WALDEN QUESTIONS DELAY
[SOURCE: The Hill, AUTHOR: Sara Jerome]
Rep. Greg Walden (R-OR) raised concern about why it seems to be taking a while for network neutrality regulations to get on the books after they were passed in December. "I'm curious as to why it’s taken the FCC so long to file their network neutrality rules in the Federal Register. It’s not that I'm eager to have their rules proceed, but it does raise some questions," said Rep Walden, the chairman of the Communications subcommittee. He questioned whether the Federal Communications Commission is following the correct procedures and whether the agency is taking its time in order to derail a GOP effort to repeal the rules using the Congressional Review Act (CRA). "Is the delay because of a failure to meet all of the procedural requirements? Or is the delay a means to slow a repeal vote in the U.S. Senate or challenges in court?” he asked. An FCC spokesman said, "There is no delay. The order quite simply is going through the normal process for clearing Paperwork Reduction Act requirements before being published in the Federal Register.”
benton.org/node/55482 | Hill, The | B&C
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NETWORK NEUTRALITY RULES ARE KOSHER
[SOURCE: The Hill, AUTHOR: Sara Jerome]
Federal Communications Commission (FCC) Chairman Julius Genachowski wrote to Rep Greg Walden (R-OR) to try to allay his concerns that the FCC's network neutrality regulations would ban Internet services that cater to religious groups. The example discussed by Chairman Genachowski and Rep Walden, the top Republican on the House Communications Subcommittee, was Koshernet. The company offers filtered Internet service for Jewish customers who do not want to see potentially inappropriate or offensive materials. Chairman Genachowski said the order does not ban such services. "The Order protects providers' ability to offer services such as Koshernet, and the freedom of consumers to subscribe to and use such services," he wrote.
benton.org/node/55481 | Hill, The
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A TAX CODE FOR THE DIGITAL AGE
[SOURCE: Bloomberg, AUTHOR: Alison Fitzgerald, Catherine Dodge]
The US corporate tax code favors global companies over domestic ones, high-tech businesses over old-line manufacturers, and drugmakers over oil companies. The U.S. federal corporate tax rate of 35 percent is the highest in the developed world. Still, the Treasury Department says the federal government bleeds $1.2 trillion a decade as battalions of lobbyists, accountants, and lawyers create and promote more ways to avoid taxes. The effect of the tax code on business behavior is clear when comparing Target and Amazon. Amazon, based in Seattle and founded in 1995, has made a series of moves to cut its tax bill since it became profitable in 2005. That year it established a European headquarters in Luxembourg, where the corporate income tax rate is 21 percent. The following year the company paid an effective tax rate of 49.6 percent as a result of selling assets to its Luxembourg subsidiary, according to its Securities and Exchange Commission filings. Since 2007, Amazon's effective tax rate has ranged from 27.9 percent to 21.9 percent. Executives at Amazon declined to be interviewed. By moving intangible assets such as patents and intellectual property to low-tax countries, Amazon could then pay its subsidiaries in those countries for the use of the assets, cutting its income in high-tax jurisdictions. The practice, known as transfer pricing, is a common strategy global companies employ to reduce taxes. Those techniques are not readily available to purely domestic firms.
benton.org/node/55479 | Bloomberg
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CONTENT

NO SOFTWARE FILTERS FOR YOUTUBE
[SOURCE: Public Knowledge, AUTHOR: Press release]
YouTube’s failure to use filtering does not make it liable for copyright infringement, Public Knowledge told the U.S. Appeals Court for the 2nd Circuit. Requiring filtering would be “in direct contradiction to both the plain meaning and the purpose of the DMCA (Digital Millennium Copyright Act)” PK argued, noting that the law does not require monitoring, much less using specific software filters. In an amicus brief, filed as part of Viacom’s billion-dollar copyright infringement case against YouTube, PK argued that while software may be able to identify copyrighted content in any given video, it cannot “make reliable legal determinations about when and whether specific uses of that content are infringing.” Technical accuracy in identifying content is not the same as legal accuracy, Public Knowledge told the court, arguing that “an automated, software- based warning of content matching is a far cry from an actual court ruling that infringement has occurred. Automated filters cannot reliably determine when and whether specific conduct is infringing.”
benton.org/node/55471 | Public Knowledge
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WIRELESS/SPECTRUM

LET FCC MANAGE INCENTIVE AUCTIONS
[SOURCE: Public Knowledge, AUTHOR: Harold Feld]
The White House event on incentive auctions was probably the most sensible public event on the pro-incentive auction side I've attended to date. While I have had several discussions with Federal Communications Commission (FCC) staff that persuade me that, if Congress gave the FCC generic authority to do voluntary incentive auctions (subject to limitations to protect broadcasters ­ including low-power broadcasters ­ that want to stay in the broadcasting business), they could design a pretty good auction that would get more spectrum out for both licensed and unlicensed broadband access. Unfortunately, just about every public discussion on incentive auctions tends to focus on either a few simplistic talking points (more spectrum=good!) or, worse, has been about trying to persuade members of Congress that spectrum auctions are magical money trees that let you solve the deficit problem without raising taxes (just look at how the 2008 700 MHz auction completely eliminated the federal deficit). So a pro-incentive auction event that does not make me grit my teeth or put me to sleep is worth celebrating. More importantly, the key take aways bear repeating: 1) Congress should leave the details to the FCC; and 2) Unlicensed spectrum is a big part of promoting broadband and the FCC ought to take the opportunity presented by repacking to expand the available white spaces. Or as Michelle Connolly, former FCC Chief Economist, put it: “”The amount of money gained [at an auction] is less important than the value of reallocation [for new, innovative uses].”
benton.org/node/55469 | Public Knowledge
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AT&T TO BLAME FOR DROPPED CALLS
[SOURCE: InfoWorld, AUTHOR: Ted Samson]
When AT&T was the sole service provider for the iPhone, both the company and the device garnered criticism for a purportedly high rate of dropped calls. A study by research company ChangeWave suggests that AT&T deserves the lion's share of the blame. The company has the highest rate of dropped calls among the top four mobile providers, whereas new iPhone carrier Verizon has the lowest rate of dropped calls. These findings, based on responses from 4,068 customers of AT&T, T-Mobile, Sprint/Nextel, and Verizon, may shed some light on why AT&T is eager to sink its claws into T-Mobile. Perhaps the extra infrastructure would give AT&T's service levels a needed boost or at least average out the carrier's overall dropped call rate on paper. According to the study, AT&T users suffered a 4.6 percent dropped-call rate in a 90-day period. On the other end of the spectrum, Verizon subscribers registered only a 1.4 percent dropped-call rate during the same time period. T-Mobile's dropped-call rate was 2.3 percent, and Sprint/Nextel's was 2.7 percent. ChangeWave also compared historical dropped-call rates over 90-day periods between Verizon and AT&T between September 2008 and March 2011. Invariably, Verizon had fewer dropped calls and in fact saw that rate drop from 2.7 percent in September '08 to 1.4 percent in March of this year. AT&T, meanwhile, steadily rose from 3.3 percent in March 2009 to a spike of 6 percent last September before gradually declining to its current rate of 4.6 percent.
benton.org/node/55463 | InfoWorld
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PRIVACY

NO MORE PRIVACY PARANOIA
[SOURCE: Slate, AUTHOR: Farhad Manjoo]
[Commentary] The Federal Trade Commission's privacy settlement with Google includes regular reviews of the company's privacy and data-collection practices by independent consultants. The audits will last for 20 years -- that is, longer than the lifespan of many tech giants. Will there even be a "Web" to search in 2030? If they're done judiciously, the privacy audits may prove helpful in ensuring that Google stays on the up and up. But that's what I worry about: Will the audits in fact be done judiciously? There's a good chance that privacy regulators—spurred by a public that doesn't really know what it wants when it comes to online privacy—may go too far, blocking Google from collecting and analyzing information about its users. That will be a terrible outcome, because while we all reflexively hate the thought of a company analyzing our digital lives, we also benefit from this practice in many ways that we don't appreciate.
benton.org/node/55465 | Slate
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