To the dismay of pundits, bloggers, paid lobbyists and policy agitators, the FCC failed to throw gasoline on the 700 MHz fire today by adopting rules for the upcoming spectrum auction that reflect a compromise position on the issue of open access. The Commission’s new rules, as articulated in press release form only (the full text won’t be out for weeks), now include two of the four conditions of open access demanded by Google and public interest groups but reviled by the incumbent wireless carriers.
Licensees in the 22 MHz “C block” group of the spectrum, the big commercial services block, will have to guarantee that not only will different handsets work in that spectrum but that they also won’t block third-party applications. The draft rules floated by FCC Chairman Kevin Martin originally called for only open access in terms of device interoperability.
Moreover, the rules also apparently contain meaningful enforcement provisions that come into play if a licensee tries to evade these requirements. The rules apparently contain remedies that consumers can easily pursue if they believe the licenses are messing with their handsets or services. In addition, the FCC seemingly puts the onus on the licensees (and not consumers) to prove that they are indeed complying with the open access requirements.
The rules do not, however, require that the licensees make available any of the spectrum on a wholesale basis to third party providers, a requirement sought by Google and the public interest groups as a means of ensuring a truly neutral wireless broadband platform. That’s why Google, although begrudgingly pleased with today’s decision, says that the new rules could have been “a more complete victory for consumers.”
Gigi Sohn of Public Knowledge also contends that the new rules are close but no cigar. The failure to mandate a wholesale access requirement is “a tremendous missed opportunity,” she said in a statement. Still, Sohn praises Kevin Martin for sticking his neck out. “He does deserve credit for inviting the ire of both the telephone companies and many of his fellow Republicans.”
In terms of fellow Republicans, not only were some key Republican congressional leaders pushing for the removal of all open access requirements, but Martin’s fellow Republican commissioner Robert McDowell also issued a vitriolic partial dissent on the decision, railing against the “large wealthy corporations” who favor open access. McDowell claims he’s standing up for all the little guys (as if little guys have the billions needed to bid on the spectrum.)
If Google and the public interest groups aren’t entirely happy with the decision, neither are the incumbent wireless carriers. Steve Largent, head of CTIA, which represents AT&T, Verizon Wireless and the other major mobile providers, said in a statement that “we are disappointed that a significant portion of this valuable spectrum will be encumbered with mandates that could significantly reduce the number of interested bidders.”
The question now remains: will the inclusion of these requirements actually discourage bidders for the spectrum? Google, which had committed to paying the $4.6 billion reserve price for the spectrum if the FCC would have agreed to the initial four principles, may still be a bidder despite the half-way measure.
During a press call hosted by Public Knowledge, Google Washington Telecom and Media Counsel Rick Whitt wouldn’t actually commit to Google’s continued participation in the auction, noting that the devil is in the details. Google wants to wait for the full text of the FCC’s order before deciding. But he did say that Google’s promise to pony up the $4.6 billion wasn’t ever a take-it-or-leave-it proposition. (Actually, what he said, in classic Washington/legal style, was: “We did not state we would not bid if not all four conditions were adopted.”)
Let’s hope that CTIA and the incumbent carriers are wrong when they say the open access conditions will discourage bidding. Another part of today’s decision stipulates that if the $4.6 billion reserve isn’t met, the open access conditions will be lifted and the spectrum will be re-auctioned without them.
However it all works out, no one seems to be 100% satisfied by today’s decision. One side says that the FCC didn’t go far enough and the other side says the FCC went too far. Neither side, however, seems ready to continue a major battle over the issue, an outcome that was all but guaranteed if the FCC had failed to expand the open access requirements, or, in the alternative, had given Google everything it wanted. That’s political compromise, which makes for good decision-making but bad political theater.
Cynthia Brumfield at 5:00 PM|Comments(0)
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