It’s Time for FCC/DOJ Inter-Agency Cooperation to Come into the Sunlight…

May 2nd, 2013 | Posted by Larry Spiwak in Antitrust | Department of Justice | Due Process | FCC Reform | Federal Communications Commission | Merger Review | Spectrum Screen - (Comments Off)

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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Will the FCC Exclude Bidders from the Upcoming Voluntary Incentive Auction?

April 4th, 2013 | Posted by Larry Spiwak in Federal Communications Commission | Incentive Auctions | Incumbent Exclusion Rules | Spectrum | Spectrum Caps | Spectrum Exhaust | Spectrum Screen | Wireless - (Comments Off)
Spectrum Caps 01

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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Spectrum Exhaust and the Monopolization Narrative…

April 3rd, 2013 | Posted by George Ford in Federal Communications Commission | Incumbent Exclusion Rules | Industry Structure and Market Performance | Merger Review | Mobile Broadband | Spectrum Caps | Spectrum Exhaust | Spectrum Screen | Wireless - (Comments Off)

In a recent speech, outgoing FCC Chairman Julius Genachowski once again reiterated the critical importance of spectrum policy “breakthroughs” to address the “tremendous stress” on the capacity of the nation’s wireless networks “from growing digital demand.”  While Congress and regulators are doing what they can, including addressing tower siting (here and here), reallocating and sharing government spectrum (here and here), and moving forward with the voluntary incentive auctions for broadcast spectrum, these actions represent only partial (and possibly untimely) solutions to spectrum exhaust.  Addressing the problem in the near term will require secondary market transactions for spectrum, where spectrum is reassigned from lower to higher …
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The Curious Case of the FCC’s Spectrum Screen NPRM…

October 9th, 2012 | Posted by Larry Spiwak in Federal Communications Commission | Incumbent Exclusion Rules | Mobile Broadband | Regulation | Regulatory Reform | Spectrum | Spectrum Caps | Spectrum Exhaust | Spectrum Screen | Wireless - (Comments Off)

With the ever-present specter of spectrum exhaust hanging over the wireless industry, policymakers are constantly faced with the corresponding question of how to allocate spectrum among competing providers to ensure that market does not devolve into one with “excessive” concentration under Section 309(j)(3)(B) of the Communications Act.  Since the 1990’s, the FCC has tried a variety of approaches—from outright spectrum caps to the current and more flexible case-by-case “spectrum screen”—to try to manage its statutory charge.  As to be expected given the huge stakes at hand, stakeholders vehemently disagree as to the best approach moving forward (particularly with the new voluntary incentive auctions for broadcast …
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