Over the past several years, there have been numerous efforts to improve the practices and procedures used at the Federal Commissions Commission. However, of all of the potential improvements bandied about, I submit that there is one improvement that has been entirely overlooked and needs immediately implementation: that is, the repeal of Section § 1.1204(6) of the FCC’s ex parte rules, which provides that the Commission and the Department of Justice (“DOJ”) can meet in secret as often as they like—without having to file anything into the record about the date of the meeting, who attended the meeting and what was discussed—just so long as …
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Author Archives: Larry Spiwak
It’s Time for FCC/DOJ Inter-Agency Cooperation to Come into the Sunlight…
May 2nd, 2013 | Posted by in Antitrust | Department of Justice | Due Process | FCC Reform | Federal Communications Commission | Merger Review | Spectrum Screen - (Comments Off)Will the FCC Exclude Bidders from the Upcoming Voluntary Incentive Auction?
April 4th, 2013 | Posted by in Federal Communications Commission | Incentive Auctions | Incumbent Exclusion Rules | Spectrum | Spectrum Caps | Spectrum Exhaust | Spectrum Screen | Wireless - (Comments Off)
Last year, when Congress was debating the voluntary incentive auction provisions of the Middle Class Tax Relief and Jobs Creation Act, many argued—including FCC outgoing Chairman Julius Genachowski—that the Commission should have the authority to adopt auction participation rules so that it could prevent an “excessive concentration of licenses” under Section 309(j)(3)(B) of te Communications Act. While Congress did not include any specific auction participation rules in the Middle Class Tax Relief and Jobs Creation Act, Section 6404 of the new legislation states that “Nothing … affects any authority the Commission has to adopt and enforce rules of general applicability, including rules concerning spectrum aggregation …
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Copyright and Wireless Carterfone (Part Deux)…
March 7th, 2013 | Posted by in Copyright | Federal Communications Commission | Handset Exclusivity | Industry Structure and Market Performance | Intellectual Property | Interoperability | Law and Economics | Mobile Broadband | Wireless - (Comments Off)Last month, I authored a blog discussing the Librarian of Congress’s recent decision not to exempt handset unlocking of new phones from the anti-circumvention petitions of the Digital Millennium Copyright Act (“DMCA”). Since that blog was posted, copyright-reform activists launched an on-line campaign to have the White House “ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.” Last week, in a post by R. David Edelman, Senior Advisor for Internet, Innovation Policy, entitled It’s Time to Legalize Cell Phone Unlocking, the White House joined in the dispute stating: The White House agrees … that …
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Is there a “Silver Lining” of Sequestration?
February 28th, 2013 | Posted by in "Cost Per Regulator" | Sequestration - (1 Comments)
Friday, absent Congressional and Presidential action, the Budget Control Act’s Sequester kicks in, forcing across-the-board spending cuts of $1.1 trillion spread out over nine years, with $85 billion cuts coming in 2013. Without question, this reduction in federal spending will impact the economy, particularly as we measure it. Government spending is a component of aggregate demand, and reduced demand in the economy will have its consequences. Also, government spending is a component of Gross Domestic Product (about 23% of it), and since recessions are indicated (in part) by declining GDP, a cut in federal spending increases the probability of an indicated recession by the simple …
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The FCC Contradicts Their Facts (Again) To Justify Expanded Broadband Regulation…
February 20th, 2013 | Posted by in Federal Communications Commission | IP Transition | Law and Economics | National Broadband Plan | Net Neutrality | Regulation | Section 706 - (1 Comments)Last year, we released a paper entitled Justifying the Ends: Section 706 and the Regulation of Broadband (and forthcoming, Journal of Internet Law) where we demonstrated how the Federal Communications Commission deliberately ignored its own evidence to support expanded regulatory jurisdiction over IP-based services. With the release of its new Measuring Broadband America Report last week, the FCC once again undermines its factual predicate for Internet regulation. Let me explain. Over the last several years, we have seen the Federal Communications Commission put forth a rather clever argument to expand its regulatory authority over broadband services. Under Section 706(a) of the Communications Act, the Commission …
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Copyright and Wireless Carterfone…
February 7th, 2013 | Posted by in Copyright | Handset Exclusivity | Intellectual Property | Interoperability | Law and Economics | Mobile Broadband | Wireless - (Comments Off)Recently, a renewed interest in long-term contracts and the practice of locking handsets to networks has emerged from an unlikely source: Copyright law. Making a very long and complicated story short, under Section 1201(a)(1)(A) of the Digital Millennium Copyright Act (DMCA), it is unlawful to circumvent certain technological measures employed by or on behalf of copyright owners to protect their works. That said, copyright law always embeds some balance between owner and user, and Section 1201(a)(1)(B) limits the prohibition for subsection (A) by exempting those persons who are “adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular …
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Looking Ahead to 2013…
January 11th, 2013 | Posted by in Broadband | Federal Communications Commission | Incentive Auctions | IP Transition | Net Neutrality | Regulation - (1 Comments)Over the course of the last several weeks, we at the Phoenix Center held Part I and Part II of our Annual U.S. Telecoms Symposium. Part I, held on December 6th, focused on the impact of the recent election on U.S. broadband policy; while the more “wonky” Part II, held last week on January 3rd, focused on emerging issues in broadband policy for 2013. As always, we had a fantastic array of speakers at both events, and the presentations were excellent. While interested folks are welcome to watch the video of the full proceedings on-line (Part I may be viewed here; while Part II may …
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Is it Time to End Asymmetric Regulation?
December 19th, 2012 | Posted by in Federal Communications Commission | IP Transition | Law and Economics | Regulation | Regulatory Reform - (Comments Off)This week, USTelecom filed a petition with the Federal Communications Commission requesting the agency to issue a declaratory ruling that incumbent local exchange carriers (ILECs) are no longer subject to dominant carrier regulation when providing interstate mass market and enterprise switched access services. As the Commission begins to evaluate USTelecom’s petition, we need to keep in mind that the policy question at the heart of this proceeding is not necessarily one of de-regulation per se (although deregulation is the end objective of USTelecom’s petition), but one of regulatory symmetry. That is, does it make sense to maintain asymmetric regulation for one select segment of the …
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With the holidays rapidly approaching, I thought I would use our final post of the year to provide a brief summary of the Phoenix Center’s many activities in 2012. (We will be releasing a comprehensive summary of our activities in our Annual Report after the New Year.) As always, the Phoenix Center in 2012 was both prolific and influential. To begin, the Phoenix Center issued eight (8) scholarly papers in 2012. The topics we covered involved a wide range of issues, including on-line intellectual property theft, spectrum exhaust, usage-based pricing, the secondary market for spectrum, the effect of regulation on investment and, perhaps most interesting, …
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When the CLECs Jumped the Shark…
December 10th, 2012 | Posted by in Federal Communications Commission | Industry Structure and Market Performance | IP Transition | Law and Economics | National Broadband Plan | Regulation | Regulatory Reform - (Comments Off)Last month, I authored a blog entitled It’s Time to Start the Conversation on the IP Transition where I argued that we could no longer postpone the development of a cohesive regulatory paradigm to manage the complicated issue of facilitating the transition from legacy TDM networks to the more efficient IP-based networks. This view is shared by FCC Commissioner Ajit Pai,who has long-proposed the creation of an “IP Transition Taskforce.” And now, the chorus of supporters widens to include FCC Chairman Julius Genachowski, who announced today that the FCC intends to form an agency-wide “Technology Transitions Policy Task Force” that will “coordinate the Commission’s efforts …
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