iPhone broken home button work-around

Full disclosure: I don’t actually have an iPhone. But my wife does (an iPhone 4), and most of my friends seem to, and I’ve seen quite a lot of those home buttons stop working, which pretty much renders the phone worthless and requires a new phone.

This happened to my wife, whose phone was not covered under Apple Care anymore, and she figured out a pretty amazing work-around that doesn’t require much actual working around. As it turns out, there is a setting on the phone to create a virtual home button that floats on the side of the screen and does the exact same thing as the home button! I was so impressed that I thought I should share, even though this isn’t the type of thing I usually discuss on this blog.

So, from my wife’s email to you, here are the instructions for how she did it:

1. Open Settings
2. Select ‘General’
3. Select ‘Accessibility’
4. Select ‘Assisstive touch’
5. Turn Assisstive touch on
6. Then a little circle will appear on your phone with a home button option. The circle can be positioned anywhere on your phone.

And that’s it – a simple and elegant solution that is a whole lot cheaper than $600 and doesn’t require any of the crazy antics of a lot of the works-arounds I’ve seen people using.

Hope that’s helpful!

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Tweet Me Fairly

Hey friends.

I recently found out that the academic article I spent last semester working on is fast-tracked for publication in Fordham’s Intellectual Property Law Journal, which is a huge honor and I am absolutely thrilled.  I’ll post a link once it has been properly edited and whatnot, but for now I wanted to post a quick synopsis and a few additional thoughts.

The article starts by exploring whether individual tweets are covered under copyright law, and therefore protectable once they are fixed (by being posted).  There doesn’t seem to be any reason that they would not be, despite their brevity.  That is, after much research I came to the conclusion that there is no rule of law saying that shortness makes a writing uncopyrightable.  (It seemed clear that a Twitter account, taken as a collection, would definitely be copyrightable as a compilation.)  There are plenty of tweets that would be uncopyrightable for lack of creativity or originality, but there are also plenty of original, creative ones.

If this conclusion is right, then shouldn’t every retweet be a violation of some 106 rights?  My argument was that a retweet is necessarily a fair use, and I went through the factors to make that case.  There is an implicit license in every tweet allowing for the fair use of retweeting, I argued, but how far does this license go?  Does it extend outside of the Twittersphere?  I also came up with a few criteria for answering that question and exploring those kinds of issues, and that’s pretty much the paper.

In addition to all of that, which is content focused, I have been following the PhoneDog case, wherein a company is suing a former employee over control of a Twitter account.  The argument is that the account’s followers are valuable to the company, and thus should remain their property after the employee leaves, even though he changed the name of the account to remove mention of PhoneDog and always used the account for a mix of work and personal tweets.

This got me thinking that a Twitter account has two layers of value – the content layer and the communicative layer (this isn’t in my paper, I’m just thinking out loud).  The content may be valuable on its own, as it is for Steve Martin and others who are publishing compilations of their tweets in book form.  The communication power – the ability to reach audiences – has a value entirely separate from the content.  For example, Kim Kardashian’s tweets probably have little or no content value (in my opinion), but her audience is something that any advertiser would pay through the nose to get.

That may be obvious, really, but for me it’s worth writing down and really thinking through.  It is interesting to watch as free services continue to develop new dimensions of value.  In a sense it is no different from a television station selling its audience to advertisers and deriving its value not from the content of the shows but the reach of its communication.  But in another way its different because of the level playing field for individual and institutional users.

It’s late, and I’m rambling, so off to bed.  I’ll post again soon, hopefully with a link to that article.

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Calling All States: FCC Preemption of Intrastate ICC Rates

Well, my summer at PSN is over, and here is my summer opus.  It’s definitely my favorite of the many pieces I wrote, and I hope you enjoy it.

Calling All States:

Examining FCC Preemption of State Authority Over Intrastate ICC Rates for VoIP

 By Adam Nelson

I.  Introduction

As telephone penetration in the United States has neared 100% over the past twenty years, the Federal Communication Commission’s (“FCC”) has begun to rethink the role of the Universal Service Fund (“USF”), which was created to increase telecommunications access for those in need.[1] With the rise of broadband as a central mode of communication as well as civic and economic engagement, the FCC is seeking to shift the USF’s purpose away from telephone access and toward broadband. This was the suggestion of the February 9, 2011 Proposed Notice of Rule Making and Further Notice of Proposed Rulemaking (“PNRM”) that proposed changes to the Universal Service Fund (“USF”) and Intercarrier Compensation (“ICC”) regime. Given the complexity and interconnectedness of the system, the FCC is facing numerous challenges and conflicting opinions in its attempts to integrate broadband into USF and find the proper place for Voice over Internet Protocol (“VoIP”) in the mission to create universal communications access in America.

VoIP is the technology through which voice communications can be carried over the Internet rather than through phone lines, as employed by services like Skype and Vonage. VoIP can be “fixed,” meaning tied to a particular location where calls must be placed from, or “nomadic,” meaning that calls can be placed from anywhere using a VoIP account. Because the technology did not exist until recently and uses Internet protocols to transfer information, it does not fall under most definitions of telecommunications even though it performs the same functions as a telephone from a consumer perspective. The FCC, as well as many state public utility commissions (“PUC”), the state agencies designated by state legislatures to regulate utilities and telecommunications, have struggled to redefine telecommunications in a manner consistent with this evolving technology.[2] VoIP has grown tremendously in popularity over the past few years and continues to gain momentum, with cable companies adding 1.01 million new voice subscribers in the first half of 2010 while residential phone line providers lost 2.88 million lines.[3] As a result, there has been both urgency and confusion over how to handle VoIP in the context of a telecommunications regime.

In its proposed reforms to adapt the USF and ICC plans to the modern landscape, the FCC is proposing various ways to include VoIP in the system, including charging USF fees and ICC rates to VoIP providers. USF fees are fees that each telecommunications provider pays into the system, based on a percentage of their retail sales, to help subsidize buildout and service for unserved areas (usually isolated, rural, low-income areas). Intercarrier compensation is the amount of payment that “one carrier makes to another carrier to originate, transport or terminate telephone calls or other communications traffic.”[4] In other words, ICC rates are the amount that local phone companies charge other phone carriers when their local networks are used to connect calls originating from other areas. Interstate rates, or the rates charged to a phone company sending a call to another state, are set by the FCC, while intrastate rates have been determined on a state-by-state basis by the state PUC.[5] With VoIP, especially nomadic VoIP where an account is not fixed to a location, it can be difficult or impossible to tell where a call is originating from or going to, and thus whether it is intrastate or interstate.  As a result, as the FCC attempts to make VoIP a part of the national communication infrastructure, it is proposing to regulate both intrastate and interstate ICC rates and make them nationally uniform. Such changes in the system have potentially wide-ranging consequences, and have provoked responses from state PUCs, national telecommunications providers, rural local exchange carriers, (“LEC”), and many other groups with an interest in the system.

One such proposal is the creation of a uniform national ICC rate for VoIP of $0.0007 per minute, as proposed in the FCC’s PNRM and endorsed by major telecoms like Verizon.[6] Though this idea was proposed as a method of curbing arbitrage and saving money in the system by keeping the ICC rate uniform and low, some have condemned it as a potentially devastating blow to rural broadband providers who require much higher ICC rates to stay in business.[7] The concern is that only large telecoms, taking advantage of economies of scale, can afford to operate with such a low ICC rate, and as a result they will have a monopoly on the market and will choose not to build out in unserved rural areas where the low ICC rate will prevent profit-making business.

A central issue to whether the FCC will set a national ICC rate is whether it in fact has the legal authority to do so. Given that states currently hold this power and currently regulate ICC rates, the FCC would need to preempt state PUC authority. Whether the FCC has the authority to preempt state ICC making authority, and under what grounds, is the issue that this paper sets out to resolve.

II.  History of FCC Authority and State Preemption

The FCC was created in by the Communications Act of 1934 for the purpose of regulating interstate and international communications including radio, television, wire, satellite and cable.[8] Its modern authority comes from the Telecommunications Act of 1996, which grants the FCC jurisdiction over wire and radio communication and commerce with the mission of creating “a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.”[9] Thus, there is no question that the FCC has authority to regulate national telecommunications issues. The issue gets complicated when the FCC intervenes in matters that may be interpreted as purely intrastate.

The FCC’s authority to preempt states in dealing with USF funds and VoIP was most famously tested in the case of Vonage Holdings Corp. v. Nebraska Public Service Commission in 2009.[10] This conflict began in 2003 when the Minnesota Public Utility Counsel ordered Vonage’s nomadic VoIP service to submit to the same state regulations as any other phone provider. The FCC responded by prohibiting state VoIP regulation and asserting that VoIP regulation should be purely federal territory.[11] The 8th Circuit affirmed that the FCC had the right to preempt state authority because it was impossible to tell which calls on a nomadic VoIP were intrastate and which were interstate, and therefore these calls fell under the FCC interstate authority to make national policies.[12] Despite the fact that states normally have authority over intrastate activities and despite the FCC’s “safe harbor provision” presuming that 64.9% of any customer’s calls could be assumed to be interstate, the 8th Circuit found that FCC preemption of state PUC authority should apply under the “impossibility exception”.[13] This exception requires a finding of two facts in order to allow the FCC to preempt state authority: (1) it must be impossible to separate interstate calls from intrastate calls, and (2) a state charge would interfere with sufficiently federal USF administration were satisfied.[14] The 8th Circuit affirmed both to be the case and the exception to apply.[15]

Shortly thereafter, the Nebraska and Kansas PUCs filed petitions asking for a prospective ruling granting them authority to charge USF fees on intrastate VoIP activity.[16] The FCC complied with their requests in its Declaratory Ruling on November 5, 2010 allowing states to charge USF fees to both fixed and nomadic VoIP services without being preempted by the FCC under two conditions.[17] First, the USF contributions must be “consistent with the FCC’s contribution rules for interconnected VoIP providers”, and second, the state may not “enforce intrastate universal service assessments with respect to revenues associated with nomadic interconnected VoIP services provided in another state,” meaning that states may not double-bill a provider by charging for services that are already being charged for by another state.[18] This way, the PUCs were allowed to collect USF money from VoIP providers with the FCC’s sanction, but the FCC still retained its power to remove that authority when necessary.

The D.C. Circuit case of Core v. FCC “affirms that the FCC has broad authority to set intercarrier compensation rates for traffic within its jurisdiction.”[19] In this case, Core Communications challenged the FCC’s right to set a cap on termination fees for Internet service provider (“ISP”) bound traffic.[20] Core argued that states should have authority over intrastate ISP traffic, whereas the FCC argued that ISP traffic is in the federal jurisdiction because it is necessarily intertwined with interstate transactions.[21] The D.C. circuit rejected Core’s arguments and found that even purely intrastate ISP traffic falls under the FCC’s authority to regulate interstate communication lines.[22] This illustrates one of the key differences between telephone service and broadband: the difficulty in separating what is intrastate from what is interstate when dealing with broadband. Telephone service operates along a wired network that makes it easy to trace where a call begins and ends. Internet protocol, on the other hand, is a point-to-point network that makes it very difficult to tell where a packet of data came from. This is especially true for nomadic VoIP.

The FCC has also made clear in the National Broadband Plan that it intends to reform intercarrier compensation and create a “glide path for reducing per minute charges” in order to reduce arbitrage and other wasteful elements of the ICC process.[23] The FCC has not yet addressed whether VoIP should be subject to the same ICC charges as a conventional telephone service, as argued by incumbent LECs who provide the connections, or whether VoIP is exempt from access charges because of its technological differences, as VoIP providers and their competitive LEC partners argue.[24]

A mirror-image case involved a dispute between a competitive LEC, North County Communications Corp., and a communication mobile radio service, MetroPCS California.[25] North County wanted the California PUC to allow it to charge intrastate ICC rates to MetroPCS, who argued that the FCC had preempted state power to set these rates. The FCC responded that it had not, in fact, preempted state authority to set rates in these types of purely intrastate transactions.[26] The U.S. Court of Appeals, D.C. Circuit, agreed with the FCC that it had not abused its discretion in allowing the California PUC to set its own intrastate ICC rates and emphasized that the courts were obliged to grant deference to the FCC’s interpretations of its own regulations whenever it was not arbitrary, capricious, or an abuse of discretion or the law.[27] The court’s deferential position leaves the control over the balance of power between state and federal USF and ICC charges largely in the FCC’s control.

III.  Applying Preemption Analysis to the PNRM’s ICC Rate Proposal

Underlying the preemption dilemma is a question of what is interstate and what is intrastate. That is, in a nationally integrated network where it may not always be possible to tell where information is coming from or going to, it will not always be possible to classify any transaction as definitely intrastate. According to the Vonage court’s analysis of the impossibility exception, this means that such a regulation should fall under FCC authority so long as it also interferes with valid federal rules or policies.[28] If the FCC considers uniform national $.0007 ICC rates to be a necessary component of its USF and ICC reform and enactment of the National Broadband Plan, it appears that such a decision, and accompanying preemption of state PUC decisions, is within its authority.

It is worth noting that the FCC’s decision not to preempt in this case was based on the existence of a successful “mechanism for separating interstate from intrastate VoIP traffic for USF contribution purposes,” but the FCC was “careful to note” that the order should not be read overly broadly.[29] Although the FCC chose not to preempt state authority to have VoIPs contribute to USF funds in its November 2010 order, it is clear that this grant was at the FCC’s discretion.[30] Contained in the Vonage holding and the FCC’s order was an implicit understanding that the FCC was not obliged to allow state PUCs any regulatory power. This indicates that, although VoIPs may be conducting intrastate business, the FCC has the power to keep them under exclusive jurisdiction as stated in the impossibility exception. This same concern is illustrated in the Core decision’s rationale, which would “give the FCC the authority to set intercarrier compensation rates for, for example, VoIP traffic that the Commission has ruled cannot be segregated into intrastate and interstate traffic.”[31]

A.  The FCC’s Statutory Authority Is Over Interstate Matters Only

A rationale giving the FCC preemption authority over state PUCs in pursuit of an effective national policy is consistent with American legal history, but ultimately prohibited by the narrow statutory authority granted to the FCC. From the early days of American history, the courts have acknowledged that effective national policy cannot be enforced without control over the localized components. In the landmark steamboat regulation case Gibbons v. Ogden in 1824, the Supreme Court acknowledged that the Commerce Clause’s grant of authority over interstate commerce meant little unless it extended to intrastate activities with interstate effects.[32] In more recent jurisprudence, this extension of federal power applies to channels of interstate commerce, instrumentalities of interstate commerce, and activities that substantially affect interstate commerce.[33] There is little question that telecommunications systems, particularly those using the Internet, fall into all three of those categories. This is especially true since the issue in question is commercial, for-profit use of LEC infrastructure and is both an instrumentality or and channel of commerce.

The FCC’s statutory authority extends only as far as Congress granted in in the Communications Act of 1934, which provides regulatory power over interstate telecommunications services and does not grant express jurisdiction over the Internet.[34] When Congress reshaped the FCC with the Telecommunications Act of 1996, it was careful to specify that it granted no implied or express authority to preempt state policies, and cemented the point by stating that “nothing in this Act shall be construed to apply to or give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier . . . .”[35] The 1934 Act does broaden the FCC’s scope and allow it to operate efficiently on a national scale by stating that the FCC “may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”[36] However, the D.C. Circuit Court of Appeals denied that this grants the FCC authority over Internet Service Providers in Comcast v. FCC, and unambiguously stated that “policy statements along cannot provide the basis for the Commission’s exercise of authority.”[37]

The Supreme Court also denied FCC authority to preempt states’ intrastate authority in Louisiana PSC v. FCC.[38] Although the case was specific to preemption of depreciation practices for intrastate communications, the Court stated broadly that “a federal agency may pre-empt state law only when and if it is acting within the scope of its congressionally delegated authority . . . . we simply cannot accept an argument that the FCC may nevertheless take action which it thinks will best effectuate a federal policy. An agency may not confer power upon itself.”[39] Given that the FCC’s congressional mandate is deliberately constructed to leave intrastate matters in the hands of states, it is clear that preemption of state authority over intrastate communications matters is an overstepping of the FCC’s authority and violation of Supreme Court precedent.

B.  The FCC Likely Has Authority Over Interstate VoIP Services

As for general FCC authority over VoIP, the Commission itself denied that cable Internet service is a telecommunications service included in its primary Title II jurisdiction in its 2002 Cable Modem Order.[40] The Comcast court did not comment on whether the very different and ambiguous case of VoIP, a clearly voice-specific service that uses Internet technology, falls under Title II primary jurisdiction or Title I ancillary jurisdiction. Even the Vonage case, which gave the FCC regulatory power over nomadic VoIP, explicitly did not “decide if VoIP is an information service or a telecommunications service.”[41] This debate remains unsettled and the states are split on how to characterize VoIP.[42] Still, it is highly likely that, absent a court ruling to the contrary, VoIP will continue to exist as telecommunications within the FCC’s Title II jurisdiction because, despite the use of the term “internet protocol” in the name, “cable VoIP calls typically do not traverse the internet but instead are carried over the cable VoIP provider’s managed network.”[43]

The FCC’s term for services that use Internet protocol to connect two-way voice communications via a managed public switched telephone network (“PSTN”) is “interconnected VoIP”.[44] The FCC defines “interconnected VoIP” as a service that “(1) enables real-time, two-way voice communications; (2) requires a broadband connection from the user’s location; (3) requires  Internet protocol-compatible customer premises equipment; and (4) permits users generally to receive calls that originate on the public switched telephone network (PSTN) and to terminate calls to the PSTN.”[45] The FCC has a very strong claim of Title II jurisdiction over these services because, while they do use Internet protocol, they function much closer to telecommunications than to information services. From a user perspective, VoIP is functionally identical to telephone service.

C.  The “Impossibility Exception” Does Not Apply

Although the FCC seems to have a strong claim over VoIP services, it has that claim only on an interstate level. Intrastate activity remains in the jurisdiction of the states. As discussed above, the FCC may preempt that jurisdiction only in the case of the impossibility exception which, despite the 8th Circuit’s ruling on nomadic VoIP in the Vonage case, may not apply to the case of fixed national ICC rates. Both prongs must be satisfied for the impossibility prong to preempt state authority, so each must be carefully examined.

The first prong is either not satisfied for VoIP service. As the Pennsylvania PUC pointed out in comments on the NPRM, “subsequent developments in technology and FCC policy show that it is neither impossible nor burdensome for carriers to separate the interstate and intrastate usage” of interconnected VoIP services.[46] Even if such separation is not always possible, the safe harbor proportions of 64.9% intrastate and 35.1% interstate set out in the FCC’s November 2010 order are a sufficient proxy for the actual proportions of local and interstate calls, and thus charges on the federal and state level. In the case of VoIP service, the impossibility exception should not apply. The Vonage court was not convinced by this argument, but the FCC’s Declaratory Ruling gave three clear methods for states to “separate intrastate and interstate revenues for purposes of determining providers’ contribution amounts” to state and federal USFs.[47] This indicates that the FCC considers the interstate and intrastate calls to be separable, as the FCC stated in its Declaratory Ruling, in which case the impossibility exception should not apply.[48] Even if such calls are not easily separable in all cases, whether the FCC may be able to set a fixed interstate ICC rate while still allowing PUCs to set their own optimal intrastate rate is a technical, empirical question that requires further study (despite the Vonage court’s opinion that this would be a substantial technical obstacle).[49]

The second prong, that localized regulation would interfere with federal rules or policies, also does not clearly cut in favor of FCC preemption. The question here is whether allowing states to set intrastate ICC rates does, in fact, interfere with the FCC’s implementation of the National Broadband Plan and the stated goals of the related NPRM. Strong arguments have been made by rural PUCs that allowing state PUCs, who best know the conditions of their state, to set their own ICC rates may be ultimately more efficient in creating universal broadband access and fostering construction of a strong national infrastructure.[50] For example, in high cost areas where smaller rural LECs make large upfront investments in infrastructure in low population density areas, a higher ICC rate is necessary to keep the business profitable.[51] The low ICC rate of $0.0007 per minute suggested by the FCC may be adequate for denser urban areas where large telecoms can benefit from economies of scale, but may not be sufficient to compensate these rural LECs. Without a higher rate of return per-customer, rural LECs may have little motivation to service these rural, expensive areas. Nor will there be sufficient incentive for larger telecom companies to step into the area and take over service, without a reasonable rate of return.

Beyond the universal access argument, there is no reason to believe that varying ICC rates from state to state would interfere with any other FCC rule or policy. Intrastate activities are the jurisdiction of PUCs and not the FCC, so it is nonsensical that an FCC policy could be reliant upon a state-by-state rate that it lacks the authority to control. Equally, it is a strange proposition that a one-size-fits-all policy is as well suited to creating access in sparse, rural areas as it is in dense, urban areas. As the Pennsylvania PUC put it, “[t]he FCC is simply unable and ill-equipped to address the network management practices and needs of smaller geographic states with sparse population centers on equal terms as large geographic states with concentrated populations . . . . A single forum – namely the FCC – focused on doing all disputes for all parties at all times on every issue in any location is a formula for failure.”[52]

IV.  Conclusion

As the FCC moves forward with its reform of USF and ICC rates, it will consider many ideas and proposals. However, the FCC’s power and jurisdiction is limited and it must pursue its goals in a manner consistent with its Congressional mandate. While that most likely includes regulating VoIP overall, it does not appear that the FCC has the authority to preempt state PUCs in setting a uniform national ICC rate. Based on the fact that VoIP uses PSTN and that it is now possible to separate intrastate and interstate nomadic VoIP traffic in billing for ICC services, there does not seem to be reason for the impossibility exception to apply. Thus, there is no reason to think that the FCC should have preemption authority over such intrastate matters.

At its heart, this is an issue of preserving the delicate balance between the federal and state governments in the United States. While it may be more convenient for the FCC to pursue its goals by setting a national ICC rate, the autonomy of states must be respected. This autonomy reflects the basic idea in our governmental structure that localized institutions are best suited to recognize and address their populations’ needs. There is little reason to believe that the FCC cannot pursue its goals while working in conjunction with the states’ PUCs to craft a sound national policy that also effectively addresses the specific needs of rural populations, urban areas, and everything in between.

References


[1] See FCC, Telephone Subscribership in the United States, (May 2011), available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db0519/DOC-306752A1.pdf (finding that telephone penetration in the U.S. is at 96%, according to data through July 2010).

[2] Public utility commissions can go by different names in different states. For example, New York’s regulatory agency is called the New York Public Service Commission. While each state’s Commission has a slightly different mandate set by their state legislatures, they are generally in charge of overseeing rates, affordability, and access to utilities like electric, gas, steam, water, and telecommunications.

[3] Brian Rankin, Cable Voice Services Review, 2011, 1033 PLI/Pat 593, 598 (February 28-March 1, 2011).

[4] Investigation Regarding Intrastate Access Charges and IntraLATA Toll Rates of Rural Carriers and the Pennsylvania Universal Service Fund, Statement of Chairman Robert F. Powelson, Docket No. I-00040105, 1 (PA Pub. Util. Comm’n 2011).

[5] The FCC gives an explanation of its charging mechanisms on its website, which can be viewed at http://transition.fcc.gov/wcb/ppd/IntercarrierCompensation/. (“Intercarrier compensation refers to the charges that one carrier pays to another carrier to originate, transport, and/or terminate telecommunications traffic… There are two major forms of intercarrier compensation – access charges and reciprocal compensation… Access charges generally apply to calls that begin and end in different local calling areas. Interstate access charges apply to calls that originate and terminate in different states, and intrastate access charges apply to calls that originate and terminate in different local calling areas within the same state. The Commission oversees interstate access charge rates, and the states oversee intrastate access charge rates.  Access charges do not apply to Internet service providers under an exemption for enhanced service providers that use the facilities of local telephone companies. Reciprocal compensation generally applies to calls that begin and end within the same local calling area.”)

[6] See Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, FCC 11-13, 196 (rel. Feb. 9, 2011)See also Letter from Tamara Preiss, Vice President, Federal Regulatory, Verizon, to Marlene H. Dortch, Secretary, FCC, CC Docket No. 01-92, WC Docket No. 07-135, 3.

[7] See Teleseminar, Nat’l Regulatory Research Inst., The Federal USF: Structure, Issues, FCC’s Notice of Proposed Rulemaking, and What It All Means For Your State, available at http://nrrionline.org/index.php?main_page=product_music_info&cPath=62&products_id=217&zenid=csjbt32j49sobev1h4301r53d2.

[9] Mathew Lasar, Did Congress really give the FCC power to protect the ‘Net?, available at http://arstechnica.com/tech-policy/news/2009/11/does-the-fcc-have-authority-to-enforce-net-neutrality-rules.ars.

[10] Vonage Holdings Corp. v. Nebraska Public Service Commission; 564 F.3d 900 (8th Cir. 2009).

[11] Vonage Holdings Corporation Petition for Declaratory Ruling Concerning an Order of the Minnesota Public Utilities Commission, WC Docket No. 03-211, Memorandum Opinion and Order, 19 FCC Rcd 22404, 22409, paraa. 11(2004), aff’d, Minn. Pub. Utils. Comm’n v. FCC, 483 F.3d 570 (8th Cir. 2007).

[12] Id. at 904. (“Under the impossibility exception, the FCC may preempt all state regulation of service which would otherwise be subject to dual control if it is impossible or impractical to separate the service’s interstate and intrastate components, and the state regulation interferes with valid federal rules or policies.”)

[13] Id. at 905.

[14] Id.

[15] Id.

[16] Rankin, supra note 3, at 603. See also, FCC Says State May Impose Universal Service Contribution Requirements on Interconnected VoIP Service Providers, Garvey Shubert Barer Legal Update (Nov. 11, 2010),  http://www.gsblaw.com/news/legal_update/fcc_says_states_may_prospectively_impose_universal_service_contribution_requirements_on_nomadic_interconnected_voip_service_providers/.

[17] Declaratory Ruling, WC Docket No. 06-122, FCC 10-185 (rel. Nov. 5, 2010), available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2010/db1105/FCC-10-185A1.pdf.

[18] Rankin, supra note 3, at 602.

[19] John Nakahata, Brita Strandberg, Mark Davis, Linda McReynolds, Kelley Shields, Darah Smith, and Renee Wentzel, The Year in Wireline Telecommunications Regulation September 2009 – September 2010, 1030 PLI/PAT 113, 143 (2010).

[20] See Core Commc’ns, Inc. v. FCC, 592 F.3d 139, 141 (D.C. Cir. 2010).

[21] Nakahata et. al., supra note 16, at 143.

[22] Id.

[23] See Federal Communications Commission’s National Broadband Action Agenda, at 3 (2010), available at http://www.broadband.gov/plan/broadband-action-agenda.html (“Broadband Action Agenda”).

[24] Nakahata et. al., supra note 16, at 142.

[25] North County Commn’ns Corp. v. MetroPCS California, LLC, Order on Review, 24 FCC Rcd 14036 (2009).

[26] MetroPCS California, LLC. V. FCC, Case No. 10-1003 (D.C. Cir. filed July 8, 2010), Final Brief of Respondents at 2.

[27] See MetroPCS California, LLC v. FCC, Case No. 10-1003 (D.C. Cir. 2011).

[28] Vonage, at 904.

[29] Michael H. Pryor, Latest regulatory developments Affecting Cable’s Voice and Wireless Business: Wireline Developments Related to the National Broadband Plan, 1033 PLI/Pat 579, 584 (2011).

[30] See Administrative Procedure Act, 5 U.S.C. 706(2)(A) (stating that only if an agency’s actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” will they be set aside by a court). The MetroPCS court read the statute as interpreted in Chevron U.S.A. Inc. v. Natural Resources DefenseCouncil, Inc., 467 U.S. 837 (1984) to give deference to an agency’s reasonable interpretation of ambiguity.

[31] Nakahata et. al., supra note 16, at 143.

[32] See Gibbons v. Ogden, 22 U.S. 1 (1824).

[33] See, e.g., U.S. v. Lopez, 514 U.S. 549 (1995); Gonzales v. Raich, 545 U.S. 1 (2005).

[34] Comcast Corp. v. FCC, 600 F.3d 642, 645 (D.C. Cir. 2010).

[35] Telecommunications Act of 1996, 47 U.S.C. § 152(b).

[36] Telecommunications Act of 1996, 47 U.S.C. § 154(i).

[37] Comcast at 654.

[38] Louisiana PSC, et al. v. FCC, 476 U.S. 355 (1986).

[39] Id. at 374-75

[40] Id.

[41] Vonage, at 906 n. 5.

[42] Rankin, supra note 3, at 603-4 (stating that Missouri, Wisconsin, Maine, and Vermont held VoIP to be state-regulable telecommunications services, but 16 states and the District of Columbia have decided the opposite, passing laws prohibiting state-level regulation).

[43] Id. at 597.

[44] See, generally, IP-Enabled Services, First Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd. 10245, 24 (2005) (“VoIP 911 Order ”) (definition codified at 47 CFR §§ 9.3).

[45] Declaratory Ruling, supra note 14, at 2.

[46] Reply Comments of the Pennsylvania Public Utility Commission, 14 (May 23, 2011).

[47] Declaratory Ruling, supra note 14, at 5-6. (“(1) [A]  safe harbor under which 35.1 percent of the provider’s revenues is allocated to the intrastate jurisdiction (calculated by subtracting our interstate safe-harbor of 64.9 percent from 100 percent); (2) the provider’s actual Nebraska intrastate revenues; or (3) the provider’s Nebraska intrastate revenues determined through a Commission-approved traffic study.”)

[48] Id. at 7. (“The Eighth Circuit’s reading of the Vonage Preemption Order rested on the premise that it is impossible to distinguish “between interstate and intrastate nomadic interconnected VoIP usage.” Two years after the Vonage Preemption Order, however, the Commission determined that the interstate and intrastate operations of interconnected VoIP providers can be distinguished for the limited purpose of assessing universal service contributions… The Commission further recognized that some interconnected VoIP providers have the capability to track the jurisdiction of their calls.  It said that those providers could base their federal universal service contributions on their actual interstate revenues.”)

[49] Vonage, at 904. (“The district court found no evidence showing Vonage’s nomadic interconnected VoIP services could be separated into interstate and intrastate components.”)

[50] See, e.g. , Teleseminar, Nat’l Regulatory Research Inst., supra note 7; Comments of the Regulatory Commission of Alaska re FCC 11-13, 25-30 (Apr. 18, 2011); Comments of Public Knowledge and Benton Foundation re FCC 11-13, 23-32 (Apr. 18, 2011); Comments of the Corporation Commission of the State of Kansas on All Sections of the February 9, 2011 NPRM Except Section XV re FCC 11-13, 36-39 (Apr. 18, 2011).

[51] Id.

[52] Reply Comments, supra note 44, at 22.

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This Band is Our Band: Spectrum Allocation and Community-Based Broadband

As part of my summer internship with the Progressive States Network, I wrote this paper exploring the how changes in spectrum allocation policy could affect the future of community-based broadband. There are cites and references posted after the article, but I’d strongly recommend checking out Fabiola Carrion‘s writing on the subject on the PSN site and Christopher Mitchell’s MuniNetworks.org.

Please let me know if you find this helpful or interesting!

This Band is Our Band: Spectrum Allocation and Community-Based Broadband

I. Introduction

Spectrum is the means through which all broadcasting takes place, so communities have much to gain by taking advantage of new Federal Communications Commission (FCC) spectrum allocation policies. As the FCC increases the amount of spectrum available and improves its efficiency, more information can be broadcasted faster and in longer range. Potentially, this gives States and communities the opportunity to provide better broadband access to unserved and underserved rural areas. In partnership with the FCC, local policies can facilitate rollout of nationwide technologies and capitalize on opportunities that they create

Broadband access and adoption open opportunities in nearly every aspect of modern life, as noted by Congress in the Broadband Technology Opportunities Program, including “consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private-sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.”[1] As the economy shifts increasingly online, Internet use will be essential to the creation of a strong consumer base, a robust job market, and a business friendly environment. For example, the newest mobile broadband development, 4G wireless technology, could alone create 200,000 jobs.[2] Pairing this new access and new infrastructure construction with the creation of new online businesses and the expansion of existing online companies, information technology positions, hardware maintenance, and the myriad other jobs associated with rapidly growing technological marketplace, it is clear how broadband access is job creator and an economic stimulator.

Despite much progress, America is still faced with a significant gap in broadband access. Of the 26 million Americans without access to broadband, three-quarters are located in the rural areas of the country.[3] These are primarily “areas where there is no business case to offer broadband, and where existing public efforts to extend broadband are unlikely to reach.”[4] This is because of the high cost of building infrastructure and low population density – hence low customer base and income potential – in these areas. The drop off in access at the low end of the income spectrum is startling – only 40% of households earning less than $20,000 a year have high-speed Internet access as compared to 70% of households earning more than $50,000.[5]

As a result, the FCC, State, and local governments have taken a variety of approaches to filling in the gaps where private industry has failed to provide service or demand has been too low to make service profitable, including strengthening funding for anchor institutions like libraries and schools, creating digital literacy programs, reforming Universal Service Funds to include broadband, and the FCC’s proposed creation of the Connect America Fund.[6] Nevertheless, the nearly one-third of Americans who do not subscribe to any form of Internet access still consider the Internet unaffordable and irrelevant to their lives, and cite lack of digital literacy as a substantial problem.[7]

Some communities have engaged in “community-based broadband” projects, wherein communities, in various forms including municipalities, designated non-profits, or co-ops, partner with Internet Service Providers to ensure thorough access to their populations and create solutions tailored to the needs of their area.[8] While many support these projects as efficient responses to the monopolistic nature of Internet service providing and see them as reasonable measures to create fair access and ISP competition, critics see it as unnecessary government interference in the free market and an unnecessary use of public funds.  As a result, the 2010-2011 State legislative sessions saw a flurry of community-broadband related bills, some explicitly authorizing municipalities to take such steps and some creating significant obstacles.

As municipalities and States have debated local solutions to the broadband access gap, the FCC has continued to take steps to address this problem on a national scale. In addition to USF reforms, expanded E-rate funding, and other improvements, President Obama has called for an additional 500 MHz of additional spectrum to be dedicated to satiating America’s ballooning demand for mobile and fixed broadband use.[9] The FCC subsequently approved nine private companies to begin exploring the so-called “white space spectrum”, a technology that holds the potential to create faster, stronger, more reliable wireless broadband that can stretch over long distances and penetrate rural areas with dramatically increased efficiency.

With this new white space spectrum on the horizon, the questions that this paper sets out to answer are how community-based broadband projects may be affected by this changing technology and by the FCC’s spectrum allocation policies.

II. Defining Terms

A. What is Community-Based Broadband?

The fundamental idea behind community-based broadband projects is that broadband is a utility that should be available to every member of every community, much like roads, electricity, and phone service, so the government ought to be involved in ensuring access. There are substantial benefits to a community if Internet access is universal. Many governmental functions can be accomplished more cheaply and efficiently; smart grids, e-health plans, and other technology-based infrastructure improvements can be more easily implemented; the local economy can benefit from a more educated and engaged population that better attracts jobs. In a testament to the value of Internet access in modern life, a 2011 United Nations report asserted that Internet access is a critical human right for the 21st century.[10] In the interest of ensuring that every household is served, not just those that are profitable and convenient for service providers to build infrastructure for, municipalities can take matters into their own hands and create a solution tailored to their community’s needs.

Community broadband models range widely in type but fit roughly into three broad categories. The first is an exclusively corporate-owned franchise model, such as the failed Wireless Philadelphia initiative, which depended on a private company to pay the enormous installation costs of the network in exchange for the municipality’s exclusive business.[11] Due to the high cost of wired infrastructure and the substantial portion of the risk riding on the private ISP, these projects are much more likely to be oriented at wireless broadband, especially in the last mile delivery. The second category is a public-private partnership wherein a municipality uses municipal bonds or tax revenue to help pay for construction of a network for a private partner who gets exclusive rights to the city’s business, access to the city’s network, and the opportunity to build it out as necessary. While this is the case in the Wireless Minneapolis project, the role that municipalities play varies greatly in different public-private models, ranging from anchor tenants, subscribers, investors, or guarantors.[12] Where the municipality has control over funding and ownership of the infrastructure, it has control over the design and implementation, so this is the most likely model to produce a wired infrastructure. Finally, in fully community-owned models, the community builds and owns the network, like Chatanooga, TN’s fiber-to-the-home network, or it turns ownership and administration to a non-profit that offers inexpensive service, like Lawrence Freenet in Lawrence, Kansas.[13]

Any one of the solutions outlined above requires quite a bit of discussion, debate, and public comment within a community before it can be implemented. While some state legislatures have tried to encourage so-called “community-based broadband projects”, for example in Washington[14], others states like North Carolina have reacted strongly against the idea and created significant barriers to municipal entry into the service market.[15] Opponents argue that the high upfront cost of entry takes too long to be earned back for the community and that a municipality has an unfair advantage over private ISPs who would otherwise serve that market, while proponents counter that the investment pays for itself in the long run.

Building a broadband infrastructure often costs upwards of several million dollars in upfront investment.[16] Although there are tremendous long-term payoffs to having a digitally savvy and educated community, especially fostering an attractive job market, such benefits are not always apparent or convincing enough to justify the size of the investment and the risk that technological development may leave the infrastructure prematurely obsolete. This fear is particularly relevant for fiber-to-the-premises (FTTP) networks.  Although FTTP is currently the fastest and most reliable means of delivering Internet service and is expected to remain so for a substantial period of time, some argue that it could be replaced by rapidly developing wireless technologies in the near future.  While community-based broadband projects can be either wireline or wireless, the current limitations of wireless range and penetration in rural areas mean that a wireline connection, at least up to the last mile, would be necessary to ensure adequate service in the short run. Wireline requires more infrastructure and so is more costly and time consuming to install and carries a greater risk of obsolescence.

This paper does not seek to address or solve the debate over the prudence of government involvement in broadband, but rather hopes to inform decisions of lawmakers trying to increase their jurisdiction’s access. Community-based broadband plans vary widely in type and are a clear, direct route for communities to take charge of their Internet penetration. However, a choice in how and whether to invest must be informed by the future of the industry and the technology as well as other options to increase access. This will all largely be shaped on the federal level by the FCC.

B. What is Spectrum Allocation?

All broadcast frequencies fall on the radio frequency spectrum, ranging from 3 Hz to 300 GHz, and every broadcast must be sent at a specific frequency so that a receiver is able receive the broadcast at that frequency. For example, a local radio station broadcasts at a specific, constant frequency so that every listener in range can turn his or her dial to that frequency to receive the audio being broadcast.

The radio frequency (RF) spectrum is considered to be the property of the American people.[17] The government, via the FCC, divided the RF spectrum into bands designated for specific purposes, with separate bands of spectrum designated for uses for the government, public safety, national defense, television, radio, cellular, and unlicensed consumers. Most of the spectrum is licensed to broadcasters who are allowed to use the broadcast airwaves to make a profit, but only on the condition that they also serve the public trust by providing news services, as per the Communications Act of 1934.[18] Theoretically, the FCC has the authority to revoke any broadcaster’s license, should they cease to use it for public good, though it has not denied a license for those reasons in over 30 years. The spectrum ultimately always belongs to the American people and is merely on loan to the broadcasters. The FCC has the ultimate authority to license spectrum out and police those who are entrusted with its use.

The “unlicensed spectrum” band is available for anyone with a broadcast device to use for any purpose, with no FCC approval required. This is the type of spectrum used by wireless microphones, wireless modems, Bluetooth, and other short distance devices that require no broadcast license to use. Unlicensed spectrum includes the 900 MHz ISM band, which is particularly good for travelling long distances and penetrating walls and other obstacles and is thus ideal for wireless Internet service as well as use in smart grids.[19] This is the spectrum band which is in the shortest supply as broadband usage explodes.

Because there is a limited amount of radio frequency available on the RF spectrum, it is a scarce resource.  Much concern has been voiced over the apparent shortage as demand has continued to balloon, primarily fueled by the widespread adoption of wireless Internet and smart phones. For example, the amount of data consumed per telephone line in America increased 450% from the start of 2009 to the second quarter of 2010 alone, and is expected to grow between 25 to 50 times the current level by 2015.[20] A spectrum shortage could lead to inadequate service, slow connection speeds, and other technical problems that would greatly limit the utility of mobile devices and create substantial problems for anyone whose mobile device is their primary Internet access point. However, two technological innovations promise to help create new usable spectrum that can satiate demand and help spur technological innovation in America.

First, the switch from analogue television broadcasting to digital television broadcasting has created much greater efficiency and requires significantly narrower bandwidth for television broadcasters. In the past, a “buffer space” of silence was left around broadcast frequencies so that interference with other broadcasts could be avoided. Due to the switch to digital television (DTV), broadcasting is much more efficient and narrow over long ranges and this buffer space is no longer necessary. As a result, the amount of spectrum allocated to these broadcasters is no longer necessary and a substantial portion of the spectrum that is currently unused can be repurposed for mobile broadband purposes. These unused frequencies are called “white spaces” because they are currently blank. Television white spaces are particularly valuable because this spectrum range is ideal for penetrating obstacles like walls and trees and traveling distances two to three times longer than the spectrum currently used for Wi-Fi.[21]

Second, the invention of “white space” technologies makes far more efficient use of the spectrum that is already available by broadcasting much more information along the existing spectrum bands. White space works by making use of both licensed and unlicensed frequencies that are available for use but not being used at any given moment in any given area. Some licensed frequency is used only in certain areas of the nation, for example, so is available in others, and many government and emergency channels are used infrequently. By analogy, it is able to efficiently use limited highway lanes by switching cars from busy lanes to empty ones and keep traffic moving at optimal speeds. White space broadcasting, also known as cognitive broadcasting, knows when a channel is open and puts the frequency to use. White space is so efficient that is has earned the nicknames “super Wi-Fi” and “Wi-Fi on steroids”, and has already been implemented around the nation for smart grids, telemedicine, and broadband access in unserved areas.[22] Unfortunately, white space technology is not yet ready for deployment and so its potential is still largely theoretical.

In June of 2011, the FCC approved a scheme to incentivize broadcasters who had switched to DTV to voluntarily relinquish their licensed spectrum back to the FCC for more efficient repurposing. Implementation of this plan relies on a Congressional grant of authority, and a bill to provide such authority and to create a national interoperable wireless broadband network dedicated to public safety is in debate at the time of this writing.[23] This bill has a direct bearing on the future of white space technology for several reasons. First, it would allocate 10 MHz of television spectrum reclaimed from broadcasters’ switch to digital to public safety (the “D-block”, as it is known) and authorize public safety officials to lease out capacity on the network when it is not in use.[24] This would create significant amounts of newly available white space that could be used to provide broadband access to currently unserved and underserved markets.[25]

III.  What This Means for Community-Based Broadband and the Access Gap

While the potential that white space technologies hold is undoubtedly exciting, the access gap that still exists will continue to worsen until a solution is implemented. The fact remains that rural areas are not profitable for private industry to connect with fiber wire or other physical infrastructure, and are unlikely to become so. The hope that wireless technologies will fill in this gap and alleviate the need for such infrastructure is appealing but risky. As a result, State and local governments are faced with difficult decisions in evaluating the viability of community broadband projects.

Fiber-to-the-premises (FTTP) broadband, which requires a fiber optic cable to be physically installed going to each home, is the most expensive technology to build but is also “the only last-mile technology capable of meeting ultra-high-speed needs of the coming years.”[26] Although technological predictions are impossible to guarantee, FTTP is expected to be an optimal technology for another 20 to 30 years.[27] Assuming this prediction holds true, FTTP is a good bet for communities planning municipal broadband systems. While significantly more expensive to install, fiber is cheaper to maintain and upgrade in the long run than either copper wire, which is already becoming obsolete and inadequate, or wireless systems, whose transmitters will likely need replacing every 3 to 7 years as technology evolves.[28] Fiber also has the added benefit of being a thoroughly reliable delivery method whose quality will not be affected by environmental issues like trees, topography, weather, and distance from the cell site.[29] Further, heavy activity by some users on the network is much less likely to affect the service of other users on a FTTP system than a wireless one.

There is an option to use a microwave point-to-point backhaul for reliable long-distance wireless Internet service, or to use a hybrid fiber microwave (HFM) system mixing the two technologies. A purely microwave point-to-point system has much potential for quality degradation and interference. The HFM system, which uses a fiber-cable backbone with microwave point-to-point cell sites for last mile delivery, has the advantage of lower cost for link distances greater than 1 to 2 miles relative to a pure fiber network without losing much in the way of capacity and reliability.[30] For areas with very low population density or rough terrain, where constructing an all-fiber network is especially difficult and costly, this could be an ideal solution.

Ultimately, the question is one of weighing the cost savings of wireless technology against the long-term strategic benefits of fiber networks.[31] For dense, urban areas, an all-fiber system is almost certainly worth the investment, as cost is relatively low. For remote areas with very low density and terrain that would be expensive to build on, the HFM system’s cost-savings relative to its benefits may be significant enough to make it worthwhile. There will likely be a quality tradeoff, though, so there is no clear universal strategy that will work generally. Each community will have to examine its own technological, geographic, and fiscal situation to determine what the best solution will be for its population’s needs.

Increased available spectrum will improve the quality of municipal broadband projects, as the current lack of spectrum “increases the cost of the buildout in unserved areas by nearly 5%.”[32] With less spectrum available, more cell sites are necessary to keep signal strength high and avoid interference, and this means more upfront investment and higher maintenance costs. Additionally, wireless speeds will be slower as a result of more activity on the same frequencies. Since unlicensed spectrum is ideal for smart grids, lack of available spectrum hinders this progress as well.[33] The hope is that white space technology will allow this last-mile microwave service to more cheaply and effectively reach more customers in unserved areas. It is thus in every state’s best interest to stay abreast of the FCC’s plans and be ready to provide the FCC with feedback, comments, and data when rule revisions and policy changes call for it.

As Congress moves forward with its plans to create a national interoperable wireless broadband network dedicated to public safety, States should be aware of the progress and take steps to help create technical standards that will be uniform between States. Michigan, for example, has deployed an interoperable communications system based on a shared architecture, while States like Montana and Utah have formed public councils that have provided successful guidance in the planning and implementation of interoperable networks.[34] This will help ensure an interoperable network. Any regions with community-based broadband projects or other centralized broadband networks should be aware of the technology already installed or slated to be utilized and create standards within the state to match the national standards being implemented. With appropriate and informed state leadership, progress and implementation can be much faster, more efficient, and more uniform, and State legislators can help by “craft[ing] statutory rules and laws that codify policy guidelines and ensure that vital funding requirements are met.”[35]

By staying involved and informed in the national spectrum allocation discussions, state legislators can be pioneers in adoption of the newest opportunities for their constituents. The new D-block spectrum available for the public safety network and the tertiary market for white space spectrum created along with it will give leaders the opportunity to raise money for their states, designate extra spectrum for unserved areas, and create industry-friendly, technologically advanced environments. To avoid missing out on these kinds of opportunities, States should retain a professional spectrum manager to help coordinate high level policies and ensure the most effective possible use of a State’s funding and resources to provide broadband access for all and an effective public safety wireless network.[36] This way state leadership can be ready to take action as soon as the opportunity arises.

IV.  Conclusion

Fundamentally, the need for community-based broadband networks is not changed by new FCC spectrum allocation policies. With luck, deployment of such programs will be easier, less expensive, and more effective. States and municipalities considering municipal broadband buildouts should stay educated on the advantages created by impending FCC policy changes and plan accordingly. With broadband playing an increasingly crucial role in every aspect of our lives, the costs of the broadband gap are constantly rising. The longer leaders wait to stimulate adoption, the larger the costs will be of building infrastructure and providing digital literacy education.

While community-based broadband may not be the answer for every community, States should consider their individual needs and options. Despite the high upfront cost, community-based broadband plans offer high levels of customizability, control, and revenue potential for communities. In light of the improvements that new FCC spectrum allocation policies promise, community-based broadband promises to be more effective and affordable than ever before.

Sources

[1] 47 U.S.C. 1305(k)(2)(D).

[2] Fed. Commc’n Comm’n, Seventh Broadband Progress Report (2011), available at http://www.fcc.gov/reports/seventh-broadband-progress-report.

[3] Fed. Commc’n Comm’n, Bringing Broadband to Rural America: Update to Report on Rural Broadband Strategy (2011), available at http://www.fcc.gov/document/bringing-broadband-rural-america-update-report-rural-broadband-strategy.

[4] Fed. Commc’n Comm’n, Seventh Broadband Progress Report and Order on Reconsideration (2011) at 2, available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db0520/FCC-11-78A1.pdf.

[5] Progressive States Network, Broadband and Technology Investments: Policy Options for 2011 (2011).

[6] In the Proposed Notice of Rule Making associated with Universal Service Reform, the FCC suggested replacing the USF with a new streamlined version called the Connect America Fund that will accomplish the same goals with less waste, fraud, and abuse.  See Fed. Commc’n Comm’n, Notice of Proposed Rulemaking in the Matter of Lifeline and Link Up Reform and Modernization (2011).

[7] Seventh Broadband Progress Report and Order on Reconsideration at 3.

[8] Laura Forlano, Alison Powell, Gwen Shaffer, and Benjamin Lennett, New Am. Found., From the Digital Divide to Digital Excellence (2011), at 5.

[9] President Barack Obama, June 28, 2010, Memorandum for the Heads of Exec. Dep’ts and Agencies, “Unleashing the Wireless Broadband Revolution”. See http://www.whitehouse.gov/briefing-room/presidential-actions/presidential-memoranda.

[10] Frank La Rue, United Nations, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (2011), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf

[11] Forlano, supra at 8.

[12] Id. at 10.

[13] Christopher Mitchell, Chattanooga Smart-Grid Receives Record Recognition, http://www.muninetworks.org/content/chattanooga-smart-grid-receives-record-recognition.  Forlano at 11.

[14] WA HB 1140.

[15] NC HB 129.

[16] Forlano, supra at 18 (identifying that St. Cloud invested $2.75 million up front, Lawrence invested $2.2 million for their project, the Lompoc network required $4 million upfront, and Wireless Minneapolis required a $2.2 million upfront investment).

[18] See 47 U.S.C. § 609 (stating that because the broadcasting spectrum belonged to the public, broadcasters must operate in the “public interest, convenience and necessity” in exchange for their broadcast licenses).

[19] SilverSpring Networks, Why Unlicensed Spectrum Dominates the Smart Grid (2010).

[20] Fed. Commc’n Comm’n, OBI Technical Paper Series, Mobile Broadband: The Benefits of Additional Spectrum (2010).

[22] Peter Stanforth, Spectrum Bridge, What is TV White Space?, available at http://www.youtube.com/watch?v=RPN6193l-Ac&feature=related.

[23] Democratic Press Office, Commerce Committee Approves Public Safety Network Bill – Now Heads to Senate Floor, http://commerce.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=967368aa-eb98-4728-8fd2-cd3059a3f9dc (2011).

[24] John Eggerton, Senate Commerce Committee Passes Broadcaster Incentive Auction Bill, http://www.broadcastingcable.com/article/469397-Senate_Commerce_Committee_Passes_Broadcaster_Incentive_Auction_Bill.php (2011).

[25] Sam Gustin, Panel Oks More Wireless Spectrum for Public Safety, http://www.wired.com/epicenter/2011/06/public-safety-spectrum/ (2011)

[26] Fed. Commc’n Comm’n, OBI Technical Paper No. 1, The Broadband Availability Gap (2010), 75, available at http://download.broadband.gov/plan/the-broadband-availability-gap-obi-technical-paper-no-1.pdf.

[27] Christopher Mitchel, The New Rules Project, Municipal Broadband: Demystifying Wireless and Fiber-Optic Options (2008), 8, available at http://www.newrules.org/sites/newrules.org/files/munibb_0.pdf.

[28] Id.

[29] Fed. Commc’n Comm’n, OBI Technical Paper No. 1 at 66.

[30] Id.

[31] Id. at 75.

[32] Id. at 80.

[33] See SilverSpring Networks, supra.

[34] Id. at 3-4.

[35] Public Safety Wireless Network Program, The Role of the States in Public Safety Wireless Interoperability, available at http://www.safecomprogram.gov/NR/rdonlyres/8D397C9C-46FD-4130-AE17-925E952ABDFC/0/role_of_the_states_guidebook.pdf.

[36] Id. at 17.

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Who Owns the Media, and Does It Matter?

Here is a very lengthy study that I summarized in a one quick paragraph.  It was published as part of the Progressive States Network’s Research Roundup.

Local Media Ownership and Media Quality — The Federal Communications Commission funded this statistical analysis of how various media ownership structures affect local usage and programing. There were three policy goals to the FCC’s Review of Media Ownership Rules: gauging competition as measured by local media usage, studying the relationship between local media ownership and local news programming, and measuring the correlation of ownership diversity and media quality. Being evaluated were FCC rules against co-ownership of an area’s newspaper and broadcast channels, limits on ownership of local television channels, and co-ownership of local radio and television stations. Newspaper sales tend to be far more strongly correlated with increased voter turnout than television news programming, so the drop off in newspaper sales over the past few years is alarming from a civic engagement perspective. However, as this analysis of 210 local media markets based on data from the FCC and Nielsen Media Research Galaxy ProFile shows, there is little or no evidence that local media’s ownership structure influences competition or local programming content or quality.

 

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Rural America’s Broadband Needs and Solutions

 My newest post is up on the Progressive States Network blog!  It is a summary/reaction to the findings released from the National Rural Assembly this summer.  Check it out on the PSN site or read below.

Rural America’s Broadband Needs and Solutions

The most daunting obstacle for rural communities trying to achieve universal broadband access is a lack of understanding. On the community level, there is a lack of understanding among local populations about the importance of becoming digitally literate and the benefits that broadband can bring to their everyday lives. On the local leadership level, there is a lack of understanding by elected officials who fail to see the fundamental role that broadband can play in bettering their constituents’ future. And finally, on the federal level there is a lack of recognition of the depth of the digital divide and the reasons it exists, resulting in a lack of urgent action. Communities must identify and communicate their own needs by getting involved in the decision-making spheres, such as state broadband task forces and advisory committees, to shore up their shortfalls into productive policy action.

These were the findings of a listening session held by the Center for Media Justice and the New America Foundation’s Open Technology Initiative at this year’s National Rural Assembly in St. Paul, Minnesota.

More than 300 rural advocates, including Progressive States Network, gathered at the conference to discuss rural needs, challenges, strategies, and policy recommendations for increasing broadband access.  At the core of these discussions was a concern about the dearth of information and understanding about the scope of the broadband gap, the problems that rural communities face, the dangers of falling behind the information curve, and the range of potential solutions. Communities must find effective avenues for creating the change necessary to thrive in the 21st century.

Local Needs

Before the broadband gap can be communicated, it must be thoroughly understood. To move campaigns forward in educating populations and policymakers alike, advocates are requesting academic research on media and telecom’s predatory practices, the connection between broadband access and quality of life, and the economic benefits that increased broadband access can bring to a community. This information would help them draw strong, convincing conclusions about the obstacles they face and the most effective strategies available, both for the short and long run. These strategies can then be crafted into a cohesive, intuitive narrative that can be used to motivate and educate communities and generate momentum behind change by tying broadband policy to the daily lives and agendas of community members and policymakers.

Once the research and messaging components are in place, rural communities have several advantages in effectively communicating them on the local level. Rural communities are typically more closely knit than urban populations and possess strong anchor institutions, such as libraries and schools, which provide Internet access and education and that can help identify specific local needs and the most appropriate best practices from neighboring areas. Close relationships with elected and appointed officials will also help keep the message on track from a people’s mandate to a political priority. The next step for advocates will be a connection to federal policymakers in D.C. to communicate the needs of America’s rural communities and help implement effective policies. Much of the most important broadband policy development happens at the federal level, so this connection will be crucial to creating substantive change.

Outcomes of the Workshop

By identifying what is at stake for rural communities, what specific challenges must be overcome, and what communities can actually do, the strategy sessions helped show where local broadband advocacy can be most effective. The list of benefits to increased broadband penetration runs the gamut from improved health care quality to better education to more effective business development, civic engagement, emergency response systems, city planning, and more. What emerges is a vision of a better, more efficient future in a myriad of ways. Inspiring as this vision is, its broadness lacks an easily communicable clarity and specificity. Any call to action will not be heeded until citizens and lawmakers alike understand the missed opportunities and substantial costs that come with inadequate broadband access.

These and other challenges expose both the limitations of local level broadband policy as well as the central role that education will have to play in this debate. Local and state funding and infrastructure are limited, receiving federal funding is a complex process, and eligibility requirements are already confusing and continuing to change (as the Universal Service Fund is overhauled to include broadband). However, from these challenges emerge areas where local communities can make a difference by learning more about the issue and leading a statewide conversation. By thoroughly understanding their own needs and getting involved in state broadband task forces and commissions, local representatives can most effectively advocate for policies that help their communities at the local and state levels. By sharing rural success stories and best practices, local advocates can educate local officials and communities on these issues while pushing for improved policies.

Policy Recommendations

Several policy recommendations came out of the sessions, each of which is directly tied to community education and improved communication about the need for expanded broadband access. Most of the recommendations focused on putting control over broadband infrastructure in the community’s hands by defining broadband as community infrastructure, recognizing Internet service as a public utility, and public ownership and community-broadband networks that allow local entities to ensure that every member of the community is offered access. Another recommendation was to reform the Universal Service Fund, which the FCC is currently doing, to encourage universal adoption and availability of broadband and facilitate other common goals.

No solution will be possible until the problem itself is fully understood and appreciated. Right now, it is the job of advocates and organizers to find effective ways to inspire communities to make broadband penetration a priority. Because the issue is so complicated and the costs and benefits so wide-ranging, this means working hard at finding the data and messages that best educate, inspire, and motivate each community and create momentum that will resonate with elected officials.

For a list of strategies and solutions, see  Progressive States Network’s Policy Options Report for 2011.

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Two Research Summaries

Here are two summaries I wrote of some interesting research recently released, both of which were published in this week’s Dispatch from the Progressive States Network.  Hope you find them interesting!

Envisioning an Internet Center for Homeless Individuals: One Group’s Quest to Reduce the Digital Divide – This report from the Center for Urban and Regional Affairs details the needs and challenges of creating an Internet access and education center run by and for homeless and low-income populations. Through interviews with homeless individuals in the Twin Cities area and a survey of existing Internet access points, the report found that most of these individuals access the web through public libraries and many are lacking even the most basic digital literacy skills. Creating a convenient, safe welcoming environment as well as targeted education is key to helping the homeless stay connected with the world, become civically engaged, and learn how to find work, housing, and other resources online.

Public Library Funding & Technology Access Study 2010-2011 – Continuing an ongoing evaluation of Internet connectivity in public libraries that began in 1994, the American Library Association found that demand for Internet services in libraries is increasing exponentially. Although 99.3% of public libraries provide free public Internet access and 87% provide technology education as well, 76% are short on computers to meet demand and 45% complained of slow connection speeds, citing costs, space, and insufficient infrastructure as major obstacles. Due to budget cuts and the slowed economy, more and more libraries decreased their open hours, especially in urban areas, and most expect to further cut services. Even so, libraries are still able to perform what they consider one of their most important functions by offering access to job databases, civil service exam resources, and assistance with job applications. Next year’s report is expected to show improvements as a result of the $7.2 billion in ARRA funding awarded in 2010.

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