Archive for February, 2016

Stop Unfairly Censoring Commissioners

Wednesday, February 24th, 2016

As it is being applied today, the Commission’s existing rule intended to protect nonpublic information hinders Commissioners’ abilities to engage in the fulsome dialogue and obtain the data needed to most thoroughly and thoughtfully consider and comment on items.  Moreover, it’s being applied discriminatorily as Commissioners are silenced while the Chairman, the Commission’s media relations team and select staff are not only allowed to openly discuss items, but also post blogs, tweet, issue fact sheets, brief the press, and inform favored outside parties about their content.  While I’d prefer to make certain draft documents available to the public and will continue to fight for this, other changes could help improve transparency in the meantime.  As a first step, let’s make it standard procedure that all Commissioners and their staffs can discuss the substance of items on circulation or a meeting agenda, minus adjudicatory law enforcement items.  To effectuate this, the Chairman should provide blanket written approval to the Commissioners to permit open discussion about the items before us.

To understand the current situation, it’s important to examine the specific text.  Section 19.735-203(a) of the Commission’s rules states that:

Except as authorized in writing by the Chairman pursuant to paragraph (b) of this section, or otherwise as authorized by the Commission or its rules, nonpublic information shall not be disclosed, directly or indirectly, to any person outside the Commission. Such information includes, but is not limited to, the following:

(1) The content of agenda items (except for compliance with the Government in the Sunshine Act, 5 U.S.C. 552b); or

(2) Actions or decisions made by the Commission at closed meetings or by circulation prior to the public release of such information by the Commission.

This rule is very straightforward, making interpretation fairly easy.  Unless the Chairman authorizes the release of nonpublic information via written document, any person who does so is subject to disciplinary, or other remedial, actions.  To be clear, this isn’t a forgotten provision of the C.F.R. with questionable applicability to Commission activities.  In fact, the Commission actually reemphasized and strengthened this rule in 2000 in response to a supposed “leak” of market-sensitive information.  And, when I specifically asked about the scope of this rule, I was told that it is interpreted to cover even the edits I suggest from time to time to improve a Commission-level item.  To reiterate: I cannot discuss what is in an item or what edits I have sought.

It is common sense that, if the Commission wants the strongest and most defensible items, it needs to talk to the outside world, including interested and affected parties.  This simple principle is embodied in the Administrative Procedure Act notice and comment rulemaking process.  Similarly, Commissioners also need the opportunity to discuss ideas, problems, and alternative ways to do things than the prescribed proposal contained in any draft item.  As it stands now, it is immensely frustrating to sit in ex parte meetings and be unable to test out other concepts and options or correct any misunderstandings of those in attendance.  But if we were to have such conversations today, my fellow Commissioners and I would risk potentially violating the Commission’s disclosure rule by revealing nonpublic information about items.  The end result is weaker Commission items.

The application of this rule in the current Commission serves as a roadblock to effective public participation and ultimately damages the FCC’s credibility as an agency.  Specifically, the Commission staff, presumably at the behest of the Chairman, is conducting private briefings for select members of the press and favored outside parties.  Numerous people can confirm that this occurs regularly.  For instance, Communications Daily’s Special Report from December 17, 2015, outlines the Commission’s growing practice of holding off-the-record press briefings for items.  To further illustrate the practice, the story reprints an FCC spokesman email as follows: “Briefings were conducted on ‘background’ by Commission staff to discuss open meeting items that had been circulated, but not approved.”[1]  How can Commission staff hold such briefings on circulated, but not approved and released, items?  Why does this not qualify as the disclosure of “[t]he content of agenda items” or “[a]ctions or decisions made by the Commission…prior to the public release of such information by the Commission”?  How is nonpublic information not being disclosed?  More importantly, why are Commissioners precluded from discussing the same?

Additionally, this Commission – or more precisely the Chairman or high-level staff working on proceedings – routinely puts out blogs and fact sheets to put its “spin” on the substance around the time when items are circulated to Commissioners for consideration.  While some of these documents are nonspecific, others provide details about some of the draft proposals or decisions.  As such, they represent and contain nonpublic information.  For instance, the fact sheet for the recent set-top box NPRM clearly states that policy calls involving “emergency alerting, privacy and children’s advertising restrictions will apply.”  Again, in fairness, I don’t have a problem with disclosing this type of material or promoting a preferred outcome, just let Commissioners do the same.

An argument could be made that the Chairman can authorize any briefing or blog, even if it discloses nonpublic information.  However, the rule is quite clear: the Chairman must provide any such authorization in writing.  Therefore, if this behavior is actually authorized by the Chairman, let’s see the official documents permitting it.  Where are the letters from the Chairman that covered each and every release of such information at the time?  While I suspect these letters don’t exist, I am always happy to be proven wrong.

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[1] Communications Daily, Special Report, A Portrait of the FCC in a Partisan Era, at 7 (Dec. 17, 2015).

A Search for Innovative Solutions that Inspire

Wednesday, February 24th, 2016

One of the many reasons I chose to take a job in public service at the FCC is the Commission’s commitment to supporting the development and adoption of accessible communications technology. As a volunteer with the KEEN (Kids Enjoy Exercise Now) program — working with young athletes with a range of cognitive and physical disabilities — I see firsthand how alternative solutions can lead to personal breakthroughs.

The FCC encourages and promotes accessible technology solutions to benefit people who face telecommunications barriers due to disabilities. These people include the more than 28 million Americans living with cognitive disabilities, which may include learning disabilities, distractibility issues and memory problems that can result from conditions such as Alzheimer’s disease, brain injury, or autism. They may experience long and short term memory impairments, reasoning deficits or difficulty in focusing on large amounts of information, any of which can dramatically affect their ability to use telecommunications technology.

People with cognitive disabilities are our friends, our neighbors, and our colleagues. They make valuable contributions to their communities and deserve the dignity that comes with being meaningfully integrated into our rapidly advancing technological ecosystem.

Speaking recently to technologists who are creating new tools for diverse populations of people with intellectual or developmental disabilities, FCC Chairman Tom Wheeler urged them to remember: “Accessibility must be a first thought, not an afterthought.”

That thought inspired an expanded focus on nominations for technology innovations that specifically address the telecommunications needs of people with cognitive disabilities for this year’s Chairman’s Awards for Advancement in Accessibility.

Moreover, we have all seen how advances in accessibility make technology more useable for all people.  Television captions, automatic door openers, sidewalk ramps, and adjustable vanity mirrors were designed with accessibility in mind, but are appreciated by all.  We are certain that advances in telecommunication accessibility for people with cognitive disabilities will help every user of these technologies.

We are encouraging technology designers and developers to share their solutions that focus on the telecommunication needs of people with differing functional requirements, using design principles that are mindful of users’ attention focus, problem-solving and comprehension issues to achieve accessibility in ways that are simple and clear, consistent, multi-modal and error-tolerant.

Nominations for all Chairman’s AAA awards, including those for innovations that address people with cognitive disabilities, are due March 31. To learn more about the Chairman’s AAA nominating process, go to www.fcc.gov/chairmansaaa.

Based on past awards, expectations are high. Since the awards were introduced in 2011, we have had the privilege of showcasing winners who have harnessed the power of broadband to deliver accessible products, services, technologies and practices that can enhance and improve quality of life for countless individuals and families.

At the FCC, we’re proud of our continuing commitment to promote accessible technology solutions we know have the potential to ensure equal access and opportunity for everyone, including people with cognitive disabilities.

Bipartisan Solutions for Universal Service

Friday, February 19th, 2016

Last week, I circulated an Order to modernize universal support for rate-of-return carriers. The item now on the floor is the result of months of arduous efforts by Commissioners O’Rielly and Clyburn and their staffs. Commissioner O’Rielly brought a command of the details and genuine desire to discover a solution. Commissioner Clyburn brought her experience, including as a state regulator dealing with these issues, and an equally passionate desire for improvement of the program.

All three of us agreed on two principles: the need for reform in the program to assure the funds went to the delivery of service, and a focus on maintaining existing service and bringing broadband to unserved areas. All three of us had different ideas about how to achieve those goals. None of us got all we wanted in this item, but the public will get what it needs: broadband to rural areas and program reform.

This bi-partisan effort was aided by the rate-of-return carriers themselves. Working through their trade associations, they engaged with the three of us in a productive manner. They, too, found it necessary to accept changes from their original position. Shirley Bloomfield and Walter McCormick personally engaged in principals-level meetings with us. We are pleased that NTCA and USTA have supported the result.

We pledged to Sen. Thune that we would bring forth a solution. We are grateful to the Senator for allowing us the time necessary to reach this conclusion, even though it was longer than any of us anticipated.

The proposed Order sets forth a package of reforms to address rate-of-return issues that are fundamentally intertwined—the need to modernize the program to provide support for stand-alone broadband service; the need to improve incentives for broadband investment to connect unserved rural Americans; and the need to strengthen the rate-of-return system to provide certainty and stability for years to come.

The proposed Order would create an entirely voluntary path for rate-of-return carriers that prefer the predictability of defined support amounts over a ten-year term. Similar to the approach that has successfully spurred deployment by larger “price-cap” carriers, this model-based support comes with defined milestones for efficient, accountable deployment. This model-based option has been actively sought by some rate-of-return carriers, and reflects significant updates and carrier-submitted data from the rate-of-return community.

For carriers who choose to continue receiving support based on traditional rate-of-return principles, the proposed Order would provide more certainty for carriers, increase fiscally responsible management of the fund, and ensure that a reasonable portion of support is spent on new buildout to connect those that remain unserved. To better meet the needs of consumers, for the first time, we would provide support for stand-alone broadband without a voice service subscription, building on the framework of our longstanding rules.

To limit the universal service fund’s burden on ratepayers, the proposed Order would adopt budget control mechanisms to ensure that rate-of-return carriers collectively stay within the established rate-of-return budget. Notably, the proposed Order reflects the shared principle embodied in the “Walden Rule,” that we should limit the use of ratepayer funds to support service in an area that is served by an unsubsidized Internet provider. And the proposed Order would lower the authorized rate of return for incumbent carriers to better reflect current financial market conditions. Finally, a Further Notice included with the Order would seek comment on additional reforms that would further guard against waste.

All of us at the Commission share a commitment to ensuring that every American has access to modern communications, which are increasingly integral to participation in our economy and our democracy. Adopting these reforms to put the rate-of-return program on solid footing — reforms which were developed through months of hard work and bipartisan collaboration — will move us closer to achieving this common goal.

Some thought reform and expansion of the rate-or-return program to support broadband wasn’t possible. They were wrong. Bipartisan teamwork and a long slog through difficult issues has produced a result that is good for America.

Defending Capitalism in Communications

Friday, February 12th, 2016

American capitalism, and its role in the communications industry,[1] should be embraced, celebrated, and exported throughout the world.  Instead, it is under continuous assault domestically by self-defined progressives and ultra-liberals, who have found sport in using misguided rhetoric and false pretenses to denigrate one of the core tenets of American society.  They demonize company executives, decry profits and income, promote class warfare and push policy positions favoring government-provided services over private sector solutions.  Beyond being disingenuous and inflammatory, these views completely ignore the extraordinary benefits that the American capitalistic system brings to communications services.  

Without proper checks and reassertion of our commitment to free enterprise, the latest anti-capitalism talk risks seeping into Commission proceedings and underlying activities.  In fact, signs of it can be seen in multiple Commission proceedings, from municipal broadband advocacy to the harmful net neutrality overreach.  The following briefly explores just some of the benefits of capitalism.

1. Connects Willing Buyer and Seller in Marketplace

One of the fundamental components of capitalism is that it brings together those willing to sell a product or service with those seeking to purchase the same.  This voluntary arrangement, in which buyers and sellers are free to conduct transactions as they see appropriate, not only benefits each party but helps generate an overall marketplace.  In the communications sphere, the rates, quantity, duration, and any other features or terms for a particular good or service are determined between the parties and based on what the market is willing to bear.  While individual consumers do not tend to negotiate every element of their communications experiences, they have free right to purchase or subscribe – or decline to do so – as they see fit.  The presence of more providers and a larger number of consumers is likely to produce natural competition, generating certain multiplier effects, including cost and production efficiencies unable to be replicated by any other economic system.  Quite simply, true competition cannot exist without capitalism.

In the communications sector, the free market has generally resulted in the innovative and competitive commercial wireless offerings that we have today.  More specifically, the free market eschews government efforts to choose the “best” Internet access technology for consumers.  Instead, it’s up to consumers to decide whether, for example, mobile broadband provides the most functionality in a cost effective way — as many consumers seem to believe — rather than a fixed alternative. 

2. Minimizes Need for Government Interference

All governments make decisions (even indecisions are still decisions), and the good people that make up the government workforce are susceptible to human error.  Despite the best intentions, mistakes will be made, paths chosen, and lines drawn.  More points in the decision-making chain increase the likelihood that human emotion, political pressure or some other factor will prevent the best outcome from being implemented.  A great example of this is the favoritism provided to companies that could qualify for “reserve” licenses in the Commission’s upcoming broadcast incentive auction.  The free market system, however, tends to lead to the most efficient and just result, even if it is not readily apparent at the time.   Take for instance the market reaction to the offerings by the original Clearwire compared to the government’s subjective intervention in selecting low-power FM stations.  Some consider this ruthlessly cold-hearted or immoral, but the collectiveness of the marketplace expedites arrival at the same unavoidable end point, with reduced graft. 

In communications, government is exceedingly busy and involved.  It tries to dictate performance of the private sector, enter the marketplace itself, prop-up failing firms, chase flawed policy goals, subsidize favored classes or companies, stifle the offerings of goods and services by disliked firms, tilt the playing field in certain directions and much worse.  While some level of activity occurs because of legacy policies, the constant tinkering inevitably interferes with the workings of capitalism and promotes bad outcomes. 

3. Protects Consumers Efficiently and Sufficiently

A fully functioning free market system provides the greatest level of protection for consumers while generating the fewest inefficiencies in the overall marketplace.  Although there may be a certain criminal element – such as those engaged in fraud – that needs government attention, capitalism generally prevents communications providers from acting outside the interests of consumers.  For example, if telecommunications rates are too high or service quality too low, another provider will respond to the opportunity to compete for customers, as long as the barriers to entry created by government regulatory burdens are low enough to justify the time and cost investment needed.  Experience shows that government entities cannot respond quicker than the marketplace, nor provide comparable remedies.  Moreover, the government’s ability to anticipate future problem areas is woefully lacking and its predictive judgment is poor, at best.

This is particularly true on the technology side.  If the product quality is low or too expensive, an innovator will spring forward to steal market share.  A great case study of this reality is the difference between the government’s efforts to force product disintegration for Internet browsers versus private developers’ new browser offerings.  Which of these had more positive impact for consumers: the Department of Justice’s antitrust case against Microsoft, or the development of Firefox, Google Chrome, and Apple’s Safari browsers?

4. Facilitates Profits and Economic Growth

Whether through an individual proprietorship, partnership, joint venture, limited liability company, public corporation or some other structure, capitalism forces firms to produce profits or face certain failure.  In the communications sector, this means high risk and profit margins are needed to offset the huge capital investments, longer trajectory of revenue returns, and cost of innovation.  This isn’t true in other economic systems as negative profits can be propped up by some other entity and margins are an irrelevant measurement. 

The alternative to a marketplace served by healthy, profitable firms is extremely damaging on many levels.  A firm’s collapse doesn’t just lead to harm to company executives, it means unemployment for all workers (union and nonunion), likely erasure of any debt (thereby destroying any equity held by investors, such as pensions holders or small investors holding stock investments), elimination of a buyer for equipment manufacturers and related vendors, and an overall reduction in the number of competitors vying for consumers’ attention and dollars.  Since many communications firms are also significantly involved in their local communities, it also means fewer charitable contributions, voluntarism, and sponsorships of local events.

At the same time, communications firms’ profits contribute significantly to the economic growth of America.  Without their success, our standard of living would be compromised or diminished.  Communications firms’ profits also feed the tax base and allow Federal, state and local governments to perform certain functions, as authorized by the electorate.

5. Fosters Entrepreneurialism

Capitalism also creates a conducive environment to spur innovation, develop new technologies, and stimulate creativity.  Its gritty competitive nature provides the necessary platform and complements the initiative required to start new firms, venture into new fields or test new ideas.  In effect, American entrepreneurs thrive or fail within the economic and individual freedoms embodied in capitalism.  This risk/reward spirit also applies to the willingness of investors – whether family, crowdfunding, angel, hedge funds, banks, financial firms or otherwise – to expend capital for a new start-up or a unique business vision.      

America’s entrepreneurial success, especially those in the communications field, stands in contrast with other governments’ inability to generate a great number of entrepreneurs or innovation within their borders using other economic systems.  Despite their overall interest, some governments seem unwilling to make the necessary changes to their regulatory policies and capital markets to fully support a strong entrepreneurial structure made possible under capitalism. 

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The Commission should reject views and rhetoric antithetical to American capitalism.  Instead, we must fully embrace its benefits as we consider all matters and root out those instances where past activities have diverged.

[1] For purposes of this document, communications is used broadly to include the telecommunications, media, and high tech industries.

Spectrum Coordination Meeting with Mexico

Friday, February 12th, 2016

On February 4-5, 2016, the Federal Communications Commission hosted a bilateral spectrum coordination meeting with Mexican government officials from the communications regulator, the Instituto Federal de Telecomunicaciones (IFT) and the Secretariat of Communications and Transportation (SCT).    

The results of this meeting represent another significant milestone in the cooperation between the United States and Mexico on spectrum coordination issues.  We were able to advance spectrum policy goals related to the upcoming Incentive Auction, train safety, and emergency communications along our common border.  

Specific outcomes from this meeting include:

  • Reaffirmation of our shared commitment to follow agreed common guidelines for repacking TV stations that will clear 600 MHz spectrum for mobile broadband use in both countries.   
  • Commitment to complete work on an agreement that will facilitate implementation of Positive Train Control technology (PTC) in the border area.  PTC is a predictive collision avoidance technology that can stop a train before an accident occurs.
  • Agreement on a roadmap to facilitate rebanding the 800 MHz band along the common border to reduce interference to U.S. public safety licensees. 
  • Development of work plans to address coordination in several other frequency bands, including the 400 MHz, 700 MHz, 2500-2686 MHz, 3.4 -3.7 GHz, 5.9 GHz, and the PCS and AWS bands.

We thank our counterparts at IFT for their hard work and diligent efforts to reach this point and we look forward to continuing to strengthen our collaborative relationship.

The Cell Phone in Your Pocket Shouldn’t Cost a Worker’s Life

Thursday, February 11th, 2016

February 11, 2016 – 5: 15 pm

Roger Sherman | Chief, Wireless Telecoms Bureau

Doctor David Michaels | Assistant Secretary of Work for Occupational Safety and Wellness, U. S. Department of Labor

Wireless solutions have opened up avenues of communication and resources unlike any of all time….

No (Pass) Interference at Super Bowl 50

Thursday, February 11th, 2016

The Super Bowl is the nation’s most widely watched sporting event.  This year, an estimated 112 million viewers tuned into Super Bowl 50 – making it the third-highest rated TV program of all time.  Whether at home or abroad, we all rely upon our local and national broadcasters to air the “big game.”  

A little known fact is that the Super Bowl represents one of the largest uses of wireless communications and spectrum every year.  Whether in the vicinity of the stadium or streaming the game online, the wireless network traffic is immense.  From television and radio broadcasters’ wireless video cameras and microphones, to wireless mics, cameras, and special effects for Lady Gaga singing the National Anthem, and Beyoncé, Coldplay, and Bruno Mars performing at halftime, and of course, the teams, fans and stadium — all use a tremendous amount of spectrum.  More than 70,000 people attended last Sunday’s game, sending photos and video of their experiences, using mobile broadband to post updates to social media, and calling and texting friends and family.  During this year’s Super Bowl, according to one media report, more than 10 terabytes of data traversed the WiFi network at Levi’s Stadium on Super Bowl Sunday, the equivalent of streaming 6,000+ hours of HD video.  All of this places a huge demand on radio spectrum.

In situations like these, it is critical that wireless communications function effectively and adhere to the FCC’s rules.  It’s the job of the FCC’s Enforcement Bureau field agents to form a defensive line to ensure that no harmful or malicious interference interrupts any of these communications.  FCC field agents have been quietly resolving interference issues at the Super Bowl and similar large events for years.  And we did so again on Sunday.  

As in previous years, the Department of Homeland Security (DHS) and the National Football League requested that the FCC provide support during events associated with Super Bowl 50.  The Enforcement Bureau and the FCC’s Public Safety & Homeland Security Bureau (PSHSB) share the agency’s planning, coordination, support, and reporting responsibilities for special events.  Commission staff worked for many months with DHS, the NFL, and other public safety agencies to prepare for this event.  Last week, the FCC deployed a team of field agents to the Bay Area to safeguard communications networks and protect radio communications from harmful interference at the game’s various events.  Field agents provided consultation, technical advice, and other on-scene support to bolster state, local, and other federal resources.  Meanwhile, the PSHSB team provided remote support for the event through monitoring provided by its 24/7 Operations Center and technology support.

The on-scene FCC team of radio spectrum interference mitigation experts came from Enforcement Bureau offices in San Francisco, Los Angeles, and San Diego, and the Equipment Development Group (EDG) in Atlanta.

2016 Super bowl FCC team

Caption: The SB 50 team (from left):  Hiep Le, Wayne Liang, Deborah Chen, Anderson Bennett, David Hartshorn, Jim Lyon, Adam Wofford, and Louis Armada

Team members worked before, during, and after the game to resolve interference issues for all spectrum users.  For example, a few days prior to the game, the NFL radio frequency coordinators – including the FCC agents – for Super Bowl 50 tested for potential interference and other problems by having all authorized transmitters turn on simultaneously.  The baseline produced from this test allowed precise mapping of all known transmitters and identified several frequency incompatibility issues, which were mitigated in order to insure interference-free spectrum for the game.  The baseline data ensured that sideline wireless broadcast microphones would be heard without interruption and that cellular phones were not impacted by external interference.  

The Enforcement Bureau also deployed next generation monitoring and direction-finding technology for this year’s Super Bowl so that field agents could more efficiently and effectively locate interference.  Agents also used FCC-developed software to conduct a spectrum inventory in and around the stadium.  As part of last year’s Field’s Modernization Order, the Commission is making significant investments in upgrading the technology tools available to FCC field agents. 

Working with colleagues in the FCC’s Information Technology Center and EDG, the Bureau has begun to equip our fleet of mobile direction-finding vehicles with secure broadband access.  These connected vehicles will have the ability to connect securely to the FCC’s network and to share real-time information.  In the past, only the agents in the direction finding vehicle itself would have had real-time access to the geolocation information observed from their vehicle.  In Super Bowl 50, our agents were able to observe the bearings from all other FCC vehicles and stations.  In situations where safety of life is at risk or an imminent resolution to interference is needed, these efficiencies are not just fiscally responsible, they are critical. 

Command view of direction-finding software

Caption: Command view of direction-finding software

With connected vehicles, we can also more quickly and efficiently push out software updates to the direction-finding vehicles used by our field agents.  Now, we can securely update all the vehicles automatically and perform troubleshooting remotely.   

The Super Bowl 50 deployment demonstrated the success of these new technical capabilities as a result of the Commission’s Field Modernization Order.  These new technologies allow for better sharing of information between agents and faster interference detection and mitigation.  Prior technology required time-consuming measurements and manual analysis.  The new systems are force multipliers.  This technology proved its worth during the game, with accurate geolocation information providing quick interference mitigation capabilities and no media or public safety downtime during the game itself. 

With Super Bowl 50, the Enforcement Bureau’s dedicated field agents again protected key communications at an important national event and once again demonstrated our ability to safeguard communications when the stakes are highest.  We applaud the SB 50 team for a job well done and continue to be proud of our agents in the Field who work tirelessly every day to protect the integrity of our communications systems.  And, of course, we also applaud the Broncos for a game well played.