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Baker to Leave FCC to Lobby for NBCUniversal

in FCC/People by

WASHINGTON, May 12, 2011 – FCC Commissioner, Meredith Baker, announced Wednesday that she will resign her post on June 3, after which she will begin her tenure as a lobbyist for NBCUniversal.

Baker’s served as one of the five FCC commissioners for less than two years, after being sworn in by President Barack Obama in July, 2009.  Previously, she spent five years during the second Bush administration at the National Telecommunications and Information Administration, where she rose to the top spot in that agency.

Comcast touted the acquisition through a statement from the company’s Washington, D.C. office president, Kyle McSlarrow.

“Commissioner Baker is one of the nation’s leading authorities on communications policy and we’re thrilled she’s agreed to head the government relations operations for NBCUniversal,” said McSlarrow. ”Meredith’s executive branch and business experience along with her exceptional relationships in Washington bring Comcast and NBCUniversal the perfect combination of skills.”

FCC Commissioner Meredith Baker

The Texas native’s announcement comes scant months following her January vote to approve the merger of Comcast Corporation and NBC-Universal.  That merger, which was laden with conditions to ensure its approval, drew criticisms that it put too much power over content and delivery in the hands of one company.

Baker, however, criticized the merger’s process openly, saying on several occasions that it took the Commission far too long to approve and that the conditions were both beyond the scope of the FCC’s authority and the result of duress leveraged by the regulating body.

“[Conditions] have become the cost of doing business with the Agency,” said Baker during a keynote address at an Institute for Policy Innovation event in March. “It devolves into how to get more out of the transaction.”

The move from one of the top posts at the FCC directly to one of the companies that agency not only regulates, but also on which it handed down a major vote earlier this year, has led critics to call out Baker and what they call a “revolving door” between employees of regulatory bodies and the companies they regulate.

“Less than four months after Commissioner Baker voted to approve Comcast’s takeover of NBC Universal, she’s reportedly departing the FCC to lobby for Comcast-NBC,” said Craig Aaron, CEO of media watchdog Free Press, through a statement Wednesday. “This is just the latest – though perhaps most blatant – example of a so-called public servant cashing in at a company she is supposed to be regulating.”

Former FCC commissioners have also assumed lobbying positions for private industry, including former Chairman Kevin Martin who left his post at the FCC in 2009 and currently lobbies for the law firm of Patton Boggs on telecommunications issues.  Former Chairman Michael Powell, a Clinton appointee Chairman who left the Commission in 2005, became president of the National Cable & Telecommunications Association last month.

Former senior attorney at the FCC and current Brooklyn Law School Professor, Jonathan Askin, noted Baker’s impartiality as a commissioner with respect to her previous experience in private industry, but expressed disappointment in her move to NBC.

“I think it’s generally inappropriate for government officials to immediately go and represent a commercial entity that is so vested in the regulatory structure,” said Askin during an interview Wednesday.  “I expected more from this administration and people appointed to positions in it.”

Moreover, Askin questioned how the FCC staffers who worked closely with Baker and remain at the agency will be able to view matters relating to Comcast-NBCU objectively. The solution, he says,  is to rely less heavily on the private sector in recruiting for government posts and more heavily on individuals from academic institutions.

Comcast stood by Baker’s move, noting that the soon-to-be former commissioner’s role at NBCUniversal will be firewalled from her previous work at the Commission.

“Commissioner Baker did everything in concert with FCC counsel,” said Sena Fitzmaurice, Vice President of Corporate Communications at Comcast, during an interview Wednesday. “This all happened several months after the [Comcast-NBCUniversal merger] review.”

Fitzmaurice noted that talks with Baker did not begin until as recently as four to six weeks ago.  Restrictions on her position will preclude her from working on any matters relating to the Comcast-NBCUniversal merger “forever,” or lobbying political appointees for the duration of the Obama administration.

Baker may, however, contact and lobby representatives in Congress.

“I am privileged to have had the opportunity to serve the country at a time of critical transformation in the telecommunications industry,” Baker said Wednesday through the statement announcing her resignation. “The continued deployment of our broadband infrastructures will meaningfully impact the lives of all Americans. I am happy to have played a small part in this success.”


Blair Levin, Following Path of Former Chairmen, Joins Aspen Institute

in Broadband Updates/Broadband's Impact/National Broadband Plan by

WASHINGTON, April 15, 2010 — Blair Levin, who became the chief architect behind the Federal Communication’s National Broadband Plan as director of the FCC Omnibus Broadband Initiative will leave the agency following the first week in May, according to a commission press release.

Levin is headed to the Aspen Institute, where he will take up residence as a Communications and Society Fellow. Chairman Julius Genachowski said Levin was “masterful in providing wisdom to the Commission about how technology and market trends interact with the nation’s public policy agenda.”  Levin said he was “pleased” to join the Aspen team. “There I can reflect on the impact of the National Broadband Plan and particularly its application to the international arena,” he said.

Each of the three former chairmen of the FCC – William Kennard, Michael Powell, and Kevin Martin – have joined the Aspen Institute following their terms as chairmen.

End of Net Neutrality? The Real Battle is Just Beginning

in Expert Opinion/FCC/National Broadband Plan/Net Neutrality by

Given that the Washington D.C. Court of Appeals today smacked down the FCC’s ham-handed attempt to impose net neutrality rules on Comcast from a couple years ago, it’s no surprise that many folks are proclaiming this to be the end of net neutrality and a blow to the Obama administration’s telecom plans.

They should know better.

All this does is mark the start of the real battle for not just net neutrality, but for control over matters broadband and beyond.

In reality, today’s decision is probably a somewhat welcome one for the Julius Genachowski-led FCC and the Obama telecom troops, since it officially removes the taint of questionable decisions led by former FCC chairman Kevin Martin from the net neutrality debate. Martin, the friend of big telcos like AT&T and Verizon, ostensibly presided over the implementation of the net neutrality “principles” back in 2005 and then the Comcast caseitself. But being by all accounts a very smart guy, Martin is probably laughing out loud somewhere now, knowing that his tactics and decisions probably got the end goal he and his backers truly wanted — mass confusion around net neutrality and the FCC’s role in adjucating it.

Though we’ve sort of been off the policy beat lately, I remember asking lots of insiders about the Comcast decision after it was initially passed, and even the most pro-net neutrality types all thought it would eventually be overturned like it was today. “Good result, bad process” was the way one net neut proponent summed up the original FCC ruling. Good call.

But since Obama’s election, Genachowski and other administration types have been busy looking well beyond the Comcast case, putting in motion not only a separate net neutrality proceeding, but also developing the recently released national broadband plan, which if executed as described will go a long ways toward making net neutrality principles part of everyday regulatory practices — not by trying to define the slippery idea of net neutrality itself but by implementing a raft of actual measurable, enforceable things like truth in broadband-speed advertising and transparency in network management practices.

Should the broadband plan’s metrics-based ideas come to pass, network service providers would have a hard time hiding the kind of dubious practices that got Comcast in hot water in the first place. And just like with the health care bill, Obama and the Democrats probably have all the votes they need right now to pass new net neutrality regulations should they so desire — in fact insiders we have talked to in the big telco camps fully expect that some sort of net neutrality regulation will appear before the end of the year. But that also means they’re gearing up to fight it, if for no other reason than to keep the nuns safe from Google.

We digress. Clearly there is much more still to happen, and we’ll be watching while it does. But the end of net neutrality? In reality, a much bigger battle for the ultimate control of the nation’s networks has just begun.

Introducing BroadbandCensus.com's People Column: Facebook Makes Changes

in Broadband's Impact/Premium Content by

Giving Tech A Voice

As Facebook increases its Washington presence, Andrew Noyes will be putting the pen down to join the company next month as manager of public policy communications. Noyes has been a reporter for National Journal Group since 2006 where he worked first for the now-dead Technology Daily publication, and later for CongressDaily. He also served as an associate editor for Communications Daily and associate managing editor for Washington Internet Daily. Noyes has a master’s degree in journalism and public affairs and a bachelor’s degree in public communication from American University. He has his own Facebook page so it might be time to send him a poke!

Also on the Facebook team is Tim Sparapani, director of public policy, and Adam Conner. Sparapani was a former senior legislative counsel from the American Civil Liberties Union.

Google has made a few small changes on its communications team.

In the portions of this story included below as premium content, BroadbandCensus.com describes some of the changes at Google, as well as other personnel changes in the government realm, and among major players in the broadband and communications realms.

Content available for Paid and Trial Subscribers of BroadbandCensus.com Weekly Report. Click here to subscribe.

[private_Premium Content][private_Free Trial]Adam Kovacevich is now leading all of Google’s public policy and communications issues while Bob Boorstin has moved over to the policy side to lead Google’s work on free expression issues. Meanwhile, Mistique Cano has been hired to take over Kovacevich’s previous responsibilities as manager of global communications and public affairs.

Also in the public relations space, Bradford Williams has joined VeriSign as a vice president of worldwide corporate communications. He was previously vice president of corporate communications at Yahoo until April and has served as a vice president of communications at eBay.

Meanwhile, last month Dewey Square Group announced that it has hired former Microsoft communications guru Ginny Terzano to lead the group’s communications practice. Terzano succeeds Dewey Square principal Kiki McLean. Microsoft has not yet announced a replacement for Terzano.

In The Government Space

During the FCC’s monthly meeting Thursday, FCC Commissioner Meredith Attwell Baker announced that Bradley Gillen, Charles Mathias and Christi Shewman will serve as her legal advisors. Millie Kerr will serve as Baker’s confidential assistant and staff attorney.

Gillen, who earned his law degree from University of Virginia School of Law, has served as a senior counsel for Dish Network and worked in the communications group at Wiley Rein LLP. Mathias, who will focus on public safety issues, recently served as an associate bureau chief in the wireless bureau at the FCC. He has worked in senior legal and government relations positions at Lucent Technologies and Bechtel and as a corporate lawyer for Ropes & Gray LLP. Mathias also earned his law degree from the University of Virginia School of Law.

Big Shots Take On New Roles

The National Association of Broadcasters has nabbed Gordon Smith to be its new president and CEO beginning next month. Smith served in the Senate from 1996 to 2008.

Former Federal Communications Commission Chairman Kevin Martin has joined Patton Boggs where he will be overseeing the firm’s technology and communications practice with Jennifer Richter.

The Progress & Freedom Foundation named its longtime staffer Adam Thierer as its new president this month. Thierer succeeds Ken Ferree. Thierer will have a lot on his plate as PFF has struggled over the years with financial issues and high staff turnover.

About BroadbandCensus.com

BroadbandCensus.com was launched in January 2008, and uses “crowdsourcing” to collect the Broadband SPARC: Speeds, Prices, Availability, Reliability and Competition. The news on BroadbandCensus.com is produced by Broadband Census News LLC, a subsidiary of Broadband Census LLC that was created in July 2009.

A recent split of operations helps to clarify the mission of BroadbandCensus.com. Broadband Census Data LLC offers commercial broadband verification services to cities, states, carriers and broadband users. Created in July 2009, Broadband Census Data LLC produced a joint application in the NTIA’s Broadband Technology Opportunities Program with Virginia Tech’s eCorridors Program. In August 2009, BroadbandCensus.com released a beta map of Columbia, South Carolina, in partnership with Benedict-Allen Community Development Corporation.

Broadband Census News LLC offers daily and weekly reporting, as well as the Broadband Breakfast Club. The Broadband Breakfast Club has been inviting top experts and policy-makers to share breakfast and perspectives on broadband technology and internet policy since October 2008. Both Broadband Census News LLC and Broadband Census Data LLC are subsidiaries of Broadband Census LLC, and are organized in the Commonwealth of Virginia. About BroadbandCensus.com.[/private_Premium Content][/private_Free Trial]

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BroadbandCensus.com: Starting the Ball Rolling on Crowdsourcing

in Expert Opinion by

WASHINGTON, September 22, 2009 – Public and transparent broadband data has now been elevated to the level of a fundamental principle, at least in the Monday speech by Federal Communications Commission Chairman Julius Genachowski.

But it’s worth reflecting on the time – not so long ago – when the quest to collect this kind of broadband data was an unrealized vision at the losing end of a Freedom of Information Act lawsuit.

On Monday, I recounted the history and aftermath of this FOIA request and lawsuit that the Center for Public Integrity filed against Kevin Martin’s FCC. In many ways, that defeat directly set the stage for the launch of BroadbandCensus.com in the fall of 2007.

All this week, during One Web Week, I’m speaking about the history of BroadbandCensus.com from a personal perspective. In this series of blog posts, I’m going to speak about what we’ve been through, who we have worked with to advance the principles of public and transparent broadband data, and what we ultimately aim to achieve at BroadbandCensus.com.

  • Part 1: The debate begins with the Freedom of Information Act lawsuit in 2006.
  • Part 2, on One Web Day: The founding of BroadbandCensus.com in the fall of 2007.
  • Part 3: The Broadband Census for America Conference in September 2008, and our work with the academic community to foster public and transparent broadband data-collection efforts.
  • Part 4: BroadbandCensus.com’s involvement with the National Broadband Plan in 2009.
  • The Final Part: The role BroadbandCensus.com and broadband users have to play in the creation of a robust and reliable National Broadband Data Warehouse.

BroadbandCensus.com is Born: An Attempt to Go Around the Incumbents

With the loss of the Freedom of Information Act lawsuit – which attempted to obtain carrier-level data about the broadband availability that the FCC holds in its Form 477 database – round one in the battle over broadband data went to the incumbents.

For round two, we decided to go after the broadband data using self-reported broadband data on a web site with a catchy name, like BroadbandCensus.com. In essence, BroadbandCensus.com is an effort to marry the data about the quality of broadband connections that only consumers have, with publicly discoverable data about the state of broadband connections on a geographic area.

All of this began to come together in late September 2007 – at the annual Telecommunications Policy Research Conference at George Mason University School of Law – and in early October of 2007 at the Berkman Center for Internet & Society at Harvard Law School. In a blog post at the time, I wrote:

Last week was a whirlwind of activity for the telecommunications, media and technology project with which I had been engaged since August 2006.The folks at the Berkman Center for Internet and Society at Harvard were kind enough to invite me to speak in their luncheon series on Tuesday, October 9. I discussed “Media Tracker, FCC Watch, and the Politics of Telecom, Media and Technology.” I’m happy to report that the event is now archived on Media Berkman as a webcast.

David Weinberger (blog: Joho the Blog) was particularly interested in broadband tracking, and how more detailed information about how to obtain information about the availability of broadband services. (See David’s post.) One of the key efforts of the project, under my direction, was the quest to obtain information from the FCC about the names of the companies that provide broadband service in each particular ZIP code. We filed a lawsuit in federal district court in Washington to obtain the information, under the Freedom of Information Act. The FCC denied our request. Right now the matter is pending before Judge Ellen Huvelle.

Say Doc Searls and John Palfrey, “Drew’s work links in obvious fashion toLawrence Lessig’s next 10 years of work on corruption.”

As I noted in the post, all of this made the Center for Public Integrity’s decision to scale back its “Well Connected” telecommunications and media ownership project particularly untimely. My last day at the Center was on Friday, October 12, 2007.

The active work on BroadbandCensus.com began on October 15, 2007. Together with Andrew MacRae, who had worked with me at the Center for Public Integrity – and now serves as Chief Operating Officer at BroadbandCensus.com – we began to sketch out the model for “crowdsourcing” broadband data collection efforts. On the business side, after an initial period of outreach, Broadband Census LLC was organized as a Limited Liability Company in the Commonwealth of Virginia on December 7, 2007.

BroadbandCensus.com Began Crowdsourcing Internet Data Collection Efforts

To get started, BroadbandCensus.com received some modest seed funding from the Pew Internet and American Life Project, and from the Benton Foundation. We’ve also been blessed by wonderful collaborators of technical and outreach matters: Virginia Tech’s eCorridors Program (I’ll speak more about eCorridors later in the week), Internet2, the Network Policy Council of EDUCAUSE, the National Association of Telecommunications Officers and Advisors, and others.

Working with our web designers and data architects, we built the data-collection mechanism on BroadbandCensus.com, and launched the site live on January 31, 2008. Here are links to some of the early press we received from New Scientist and Telephony Online.

The questions in the “Take the Broadband Census” are basic: (1) Where are you taking the Census, (2) What is your ZIP code, (3) Which carrier do you use? (we require individuals to select from a drop-down menu, rather than a free form box, to ensure standardization), (4) What type of service?, (5) What are your promised speeds, (6) How do you rate the service? (on a scale of 1-5 stars), and (7) Comments?

Home users are required to pick select from among the carriers; office and university users are not. Everyone taking the Broadband Census is required to include their ZIP code, or their ZIP+4 code, and to rate the service quality of their connection.

Very soon after we launched the Take the Broadband Census page, we launched Step 2, the Beta Speed Test, in February 2008. We use the open-source NDT test, or the Network Diagnostic Tool, developed by Internet2. Virginia Tech’s eCorridors Program pioneered the use of NDT for public speed tests.

We do not host any NDT servers. Rather, we direct our internet traffic to eight computers around the country on which they may test their speeds. Using the programming language Java, the applet we deploy collects the results of the NDT test, copies them over to BroadbandCensus.com, and publicly displays the results of the upstream and downstream speeds on BroadbandCensus.com.

All of the content and data-sets on BroadbandCensus.com are published under a Creative Commons Attribution Noncommercial License, allowing state/local governments, and universities, to freely take and republish all of the data-sets, provided that they attribute them to BroadbandCensus.com.

The combination of the Broadband Census questionnaire with the NDT speed test allows important observations to be realized. Are users getting the speeds that they are promises? Is there a correlation between promised and delivered speeds, and the rankings that consumers give to their service quality? Which carriers are the fastest, and are they faster in some parts of the country than in others?

A further dimension of BroadbandCensus.com’s activities is to help consumers monitor how well broadband providers live up to their promised terms of service. See this article about Comcast’s Terms of Service for an early example of this.

I gave an interim report about the progress and use of BroadbandCensus.com in July 2008 at the Joint Techs Conference in Lincoln, Neb.

Spreading the Word About BroadbandCensus.com and the Broadband SPARC

Building sufficient momentum behind BroadbandCensus.com has always been our biggest challenge, particularly in the those early months of 2008. This, remember, was before the intense focus that the presidential campaign, and the broadband stimulus package, placed on a data-driven approach to broadband policy.

Our marketing has been built upon word-of-mouth efforts, cross-promotion by our partners, and through the speeches and articles that I’ve written about the need for public and transparent broadband data. Among these efforts were speeches at Freedom to Connect, Internet2, NATOA, the National Conference for Media Reform, the Institute for Politics, Democracy and the Internet’s Politics Online conference, and in other venues.

One of the ways that BroadbandCensus.com has encapsulated our efforts, in a short-hand way, is through a simple acronym: Broadband SPARC. This stands for the Speeds, Prices, Availability, Reliability and Competition within a particular area.

We’ve pioneered this concept of collecting and aggregating broadband data from a variety of sources – from carriers that voluntarily provide data, from consumers and the speed tests they take, and from publicly available sources. SPARC is an effort to represent the panoply of broadband options, and not simply to focus on whether “broadband,” at any particular pre-defined speed, is available or not.

One Web Day 2008 marked a turning point in our outreach efforts.

We joined together with One Web Day to help promote a conference that we organized in September 2008 – the Broadband Census for America Conference – and to urge people to Take the Broadband Census. One Web Day was one of the non-profit sponsors of the Broadband Census for America Conference, which I’ll discuss in greater detail on Wednesday.

We urge you to also Get Involved in our efforts. You can:

•Take the Broadband Census and Speed Test

•Grab a Button for Your Blog

•Join one of BroadbandCensus.com’s Committees

About BroadbandCensus.com

BroadbandCensus.com was launched in January 2008, and uses “crowdsourcing” to collect the Broadband SPARC: Speeds, Prices, Availability, Reliability and Competition. The news on BroadbandCensus.com is produced by Broadband Census News LLC, a subsidiary of Broadband Census LLC that was created in July 2009.

A recent split of operations helps to clarify the mission of BroadbandCensus.com. Broadband Census Data LLC offers commercial broadband verification services to cities, states, carriers and broadband users. Created in July 2009, Broadband Census Data LLC produced a joint application in the NTIA’s Broadband Technology Opportunities Program with Virginia Tech’s eCorridors Program. In August 2009, BroadbandCensus.com released a beta map of Columbia, South Carolina, in partnership with Benedict-Allen Community Development Corporation.

Broadband Census News LLC offers daily and weekly reporting, as well as the Broadband Breakfast Club. The Broadband Breakfast Club has been inviting top experts and policy-makers to share breakfast and perspectives on broadband technology and internet policy since October 2008. Both Broadband Census News LLC and Broadband Census Data LLC are subsidiaries of Broadband Census LLC, and are organized in the Commonwealth of Virginia. About BroadbandCensus.com.

BroadbandCensus.com: Leading the Charge for Public and Transparent Data

in Expert Opinion by

WASHINGTON, September 21, 2009 – Broadband data is important for the future of our country – and public and transparent broadband data is even more important.

Today, at this moment, new Federal Communications Commission Chairman Julius Genachowski is making a speech in which he is highlighting the vital principle of public and transparent broadband data.

For three years now, this principle has been the core belief animating my efforts as a journalist, and as the entrepreneur founding BroadbandCensus.com. Now, as we enter the fourth year since this saga began, it’s time to take stock and reflect on what BroadbandCensus.com has accomplished.

And with One Web Week having arrived, I’d like to lay out this history from a personal perspective. In this series of blog posts, I’m going to speak about what we’ve been through, who we have worked with to advance the principles of public and transparent broadband data, and what we ultimately aim to achieve at BroadbandCensus.com.

  • Part 1: The debate begins with the Freedom of Information Act lawsuit in 2006.
  • Part 2, on One Web Day: The founding of BroadbandCensus.com in the fall of 2007.
  • Part 3: The Broadband Census for America Conference in September 2008, and our work with the academic community to foster public and transparent broadband data-collection efforts.
  • Part 4: BroadbandCensus.com’s involvement with the National Broadband Plan in 2009.
  • The Final Part: The role BroadbandCensus.com and broadband users have to play in the creation of a robust and reliable National Broadband Data Warehouse.

The Beginnings: Why I Sued Kevin Martin’s Federal Communications Commission

BroadbandCensus.com was founded in October 2007 after I spent nearly a year and a half with the Center for Public Integrity, a non-profit investigative journalism organization based here in Washington. But the quest for public and transparent broadband data goes back further.

For more than 15 years, I have covered the politics of telecom, media and technology. Most of that was spent at the National Journal Group in Washington, a key source of inside information about policy and lobbying. My aim there, as it is now, was to ensure that all the facts are brought to the table, that divergent viewpoints are fairly represented, and that questions asked go to the center of the debate.

When it came to broadband, the looming questions were and still are: where do we have broadband in the United States, and who is offering it? What kind of service is promised, and are carriers delivering on those promises?

In 2006, issues of broadband policy lurked in the background of many major political and media controversies: Net neutrality, online piracy, media ownership and control, the build out of high-speed networks, both wired and wireless, and the role of Web 2.0 in government and society. Whatever the ultimate resolutions for each of these controversies, the first step was better broadband data.

At this time, I headed the Center for Public Integrity’s media and telecommunications project, “Well Connected.” We were expanding its focus on media ownership to the new source of media control: the nation’s broadband infrastructure.

The Federal Communications Commission had a database about the carriers that offer broadband by ZIP code. This database is created from the carriers filing the Form 477 with the FCC. The FCC publishes other databases of the locations of radio and television broadcasters, and of cable companies. We asked for a copy of the Form 477 database in August 2006. At that time, we cited the Freedom of Information Act.

An FCC staff member called me to discuss arrangements for getting our electronic copy. When I called the FCC staffer back, less than 45 minutes later, he told me that he had been instructed not to talk to me further. From that point on, only Kevin Martin’s lawyers would do the talking.

The FCC missed their 20-day deadline to timely respond to our FOIA letter. On September 25, 2006, the Center for Public Integrity filed suit in federal district court , seeking to enforce our FOIA request. We asked the district court to grant us access to the Form 477 database, with information about subscriber numbers redacted (if necessary). The end result would be a database with the names of the carriers that offer broadband on a ZIP code basis.

Even though the FCC has been collecting the Form 477 since 2000, and already has a database of all of this information, they have only ever released the number of providers within a ZIP code, and not the names of the providers. Even then, the agency only released the number if the number was four or more – out of an excessive concern for identifying carrier information.

That’s like saying that the government will restrict the release of information it has about how many gas stations there are in your town if there are not four or more gas stations in town. In any case, the government won’t tell you the names of the gas stations, or where you can find them, so that you can buy gas. And most definitely, they won’t share the prices at which the gas stations sell gas.

“We filed suit against the FCC to obtain the data that the public and policy-makers need in order to get a complete and accurate picture of the current state of broadband,” I said at the time.

Broadband Providers Seek to Forestall Publication of Carrier-Level Broadband Data

I’ve recounted the story of the FOIA litigation at great length, in June 2007, in a story, “Center Spearheads Efforts to Disclose Broadband Data,” and in February 2009 in Ars Technica, “US broadband infrastructure investments need transparency.”

We were seeking something quite straightforward: the identities of broadband carriers that offer service within a particular geographic location. At the time, we were seeking ZIP code information, because that was the best information that the FCC had.  I and many others have long recognized that ZIP codes are extremely problematic and coarse unit of measurement. And that is why it is extremely positive that, in July 2009, the NTIA declared that it needed broadband information by Census block.

But in 2006 and 2007, getting carrier-level broadband data by ZIP would have been a good first step. Then-Chairman Kevin Martin, of course, was never a fan of public disclosure. After his agency nixed any sort of collaboration or compromise in approaching our FOIA request, Martin sought to shore up support from industry. On December 15, 2006, the agency issued a “Public Notice to Service Providers Who Filed FCC Form 477s With The Commission And Sought Confidential Treatment Of The Information Submitted.”

AT&T and Verizon Communications, along with the Wireless Communications Association International, intervened in the lawsuit. Others filed as “friends of the court,” on the side of the FCC. The public notice and the interventions forced Judge Rosemary Collyer to recuse herself from the case, as she owned stock in AT&T. The case went to Judge Ellen Huvelle.

“As a non-profit publisher of investigative journalism committed to transparent and comprehensive reporting both in the U.S. and around the world, the Center for Public Integrity believes that making data about the names of the broadband provider on a ZIP code-by-ZIP code basis would allow consumers to ‘truth-check’ the FCC data,” I wrote at the time. “Adding citizen-provided information about the speed, quality and price of such connections would, in turn, create a robust collection of information further informing telecommunications-related public policy debates.”

In their defense, the carriers said that disclosure would cause them competitive harm – the legal standard for denying the disclosure of data under the Freedom of Information Act.

In our legal briefings, the Center noted “that all of the major communications companies – including cable, wireless and telecom players – already provide ZIP code lookup of service availability on their Web sites.” If the information was not available on web site, the information was readily available by calling up the carrier and asking if service was available at that address. Because such information was already readily-discoverable, aggregating the data on a single web site would not cause competitive harm, either.

Among those who intervened in the suit, some sincerely believed that disclosure would have caused them harm. Others litigated merely because of the possibility of a negative FOIA precedent. Whatever the case, Kevin Martin’s FCC certainly went all-out to defend restrictions on data.

In its legal briefings, the FCC argued that releasing the data would lead to competition in communications. “Disclosure could allow competitors to free ride on the efforts of the first new entrant to identify areas where competition is more likely to be successful,” the agency told the federal district court in Washington.

It was supremely ironic that that the FCC and the communications industry were fighting our efforts to obtain public and transparent broadband data at the same time that Congress and the FCC began to clamor for precisely that which we were seeking: better broadband data to address a range of policy concerns.

Together with my friend Scott Wallsten, then of the Progress and Freedom Foundation (later with Technology Policy Institute, and now at the FCC), the Center for Public Integrity organized a Conference on Broadband Statistics on June 28, 2007, at the National Academy of Science.

Scott and I gathered an assemblage of many people, including officials from Comcast, Verizon, AT&T, ConnectKentucky, plus leading academics and policy practitioners in the field, including experts from Information Technology and Innovation Foundation, Pew Internet and American Life Project, and the University of Texas at Austin, to consider precisely these questions. Audio from the June 2007 conference is available here; a transcript of the proceeding is available here.

More recently, Wallsten’s appointment as the economics director of the FCC’s broadband task force has prompted some controversy. But Wallsten has always been supportive of my efforts – and those of others in the field – to push for greater disclosure of broadband data. See “What Disconnect?,” and “Hiding the Broadband Map.”

The Aftermath: Kevin Martin and Me

Unfortunately, the Center lost the lawsuit when Judge Huvelle ruled against the Center in August 2007, and again in October 2007 after a motion for reconsideration. I’ll talk briefly in Tuesday’s blog post about the founding of BroadbandCensus.com in the aftermath of this defeat, and on Wednesday about BroadbandCensus.com’s efforts, in 2008, to advance public and transparent broadband.

But it’s worth fast-forwarding to get to the end of the Kevin Martin story.

Martin’s tenure at the FCC was marked by his repeated jokes about how he led the FCC like the KGB. That would seem to be of a piece with denying Freedom of Information Act requests like the one I initiated.

Yet I never anticipated just how pointed his criticism of public and transparent broadband data could be. I had been invited to speak at the National Association of Regulatory Utility Commissioners’ and the FCC’s joint conference on broadband deployment and data at the FCC, in San Jose, on November 6, 2008 – two days after the presidential election.

In my presentation, on the background to and requirements of the Broadband Data Improvement Act, I referred to the Center’s FOIA lawsuit, quoted in the section above, about how the FCC didn’t want disclosure of carrier data to lead to greater competition. Kevin Martin interrupted my presentation seven times! He disagreed with my characterization of the FCC’s position on broadband data.

“It was actually also because the carriers do not want it to be disclosed, and so it was not provided in a public way,” Martin first interjected. I disagreed with him, saying that “The FCC chose through its discretion over a period of time not to release information about carrier by carrier level.”

To which Martin replied, “I am not going to have an argument with you over it. I think we should move on…. This is not about FOIA litigation.  No one is interested in that.”

I came back with, “I am just pointing out that the law does not need to be changed for the FCC to release this data.”

And that still isn’t the end of the story.

Two weeks later, on November 18, 2008, Kevin Martin was back in Washington for what appeared to be his final swan song: accepting an award at the Phoenix Center for Advanced Legal and Economic Public Policy Studies at the National Press Club. Martin gave his remarks, and was praised by the Phoenix Center. After chatting with journalists for a few minutes, we all went our separate ways.

Later, as I was walking over to the elevator to depart, I saw the elevator door closing on Kevin Martin and his long-time chief of staff, Dan Gonzalez.

Martin opened the doors by pushing the open button, and I walked in. Martin asked me what I had in my hands. It was a box with flyers, so I handed him a flyer from BroadbandCensus.com, and told him a bit about our next upcoming activity as the elevator went to the ground floor.

As we stepped into the lobby, I asked Martin if he had a nice trip back from the broadband data conference in San Jose.

He chuckled somewhat under his breath, and then said: “You may not believe this, but I think what you are doing is a good thing. I just can’t end up giving it to you.”

Week Ahead: A New Sheriff in Town

in FCC/National Broadband Plan/Premium Content/Wireless by

From BroadbandCensus.com Weekly Report

WASHINGTON, August 31, 2009 – The broadband policy center of gravity is beginning to shift from northwest to the southwest – or at least from NW Washington, where the Commerce Department and its National Telecommunications and Information Administration is based, to SW Washington, at the Federal Communications Commission.

In the two months since Julius Genachowski was confirmed as chairman of the agency, he’s been pushing more and more for a wholescale “reinvention” of the way that the telecommunications referee does business. He’s brought on board many of the brightest stars in the broadband policy arena and appears to have given them the authority to run the national broadband policy initiative.

Content available for Paid Subscribers of BroadbandCensus.com Weekly Report. Click here to subscribe.

[private_Premium Content][private_Free Trial]Genachowski has also put forward a fresh new web site, http://broadband.gov , which has the look and feel of a consumer-friendly internet portal, complete with blogs and now a Twitter feed (see page 5). Plus, he’s put another crew onto “FCC Agency Reform,” which prom¬ises another agency web site with features designed to help the average citizen monitor ex parte insider meet¬ings that take place at the agency.

More pointedly, Genachowski is taking action, early in the administration, on a topic that may herald far-ranging changes in the field of Net neutrality – at least insofar as it relates to wireless devices. He’s doing this with four words: innovation, investment, competi¬tion and consumers. He said them over and over again at the agency’s monthly meeting on Thursday.

Last week the agency issued three inquiries into various aspects of the wireless marketplace. One deals with innovation and investment; another with competition; and the third with consumer disclosure. And although the notices are phased in general terms, it’s unmistakable that Genachowski is putting the wireless industry on notice: he’s pushing for a wireless corollary to the Carterphone decision.

A Carterphone was a device that connected a land-line phone to a mobile radio. In 1968, the FCC held that – in spite of protestations by AT&T – that “any lawful de¬vice” that did not harm the telephone network could be connected to it. And that principle, in turn, has become one of the hallmarks of the FCC’s policy statement on “Net neutrality,” or the principle that consumer should have the freedom to do precisely that.

The question arises: what if a consumer wants to connect an Apple iPhone to another carrier’s network, and not that of AT&T’s? AT&T current offers the device exclusively to its customers. Many high-tech compa¬nies, including Skype, have been pushing for a wireless analog to the Carterphone ruling.

Last year, the FCC under Kevin Martin rejected a petition by Skype to do just that.

The 1968 decision is nowhere mentioned in the three notices. But in his opening statement, Genachows¬ki deftly did precisely that. Even more, he linked his support for Carterphone to a sympathetic dentist and innovator, Dr. James Marsters, who passed away on July 28. http://www.ntid.rit.edu/media/full_text.php?article_id=963

Marsters, according to Genachowski, was pivotal in the invention of the text telephone, which is often called a teletype, or TTY device. The device enables the deaf to communicate by telephone.

“It was truly a transformational technical achievement,” Genachowski said. “The TTY become, following the landmark Carterphone decision, perhaps the earliest example of the power of innovation to unleash the genius of the inventor at the edge of the network.”

Just as with the actual Carterphone, “Marster’s inven¬tion was initially resisted, rather than embraced, by the phone companies,” Genachowski said.

“It is in the spirit of that great man” that the agency focuses on innovation and investment, competition and consumers. “These values lie at the core of the FCC’s mission.” [/private_Premium Content][/private_Free Trial]

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Clyburn Sworn in as FCC Commissioner

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WASHINGTON, August 6, 2009 – Mignon Clyburn was sworn in Monday as a commissioner of the Federal Communications Commission. The ceremony took place in her home state of South Carolina, with the oath administered by U.S. Senior District Judge Matthew Perry Jr.

“I am deeply honored that President Obama and the United States Senate have entrusted me with the privilege of serving as a commissioner of the Federal Communications Commission,” she said in a statement.

“This is an exciting and challenging time in our nation’s history.  I am eager to hear from and work with all stakeholders to carry out, along with my colleagues, communications policies that protect consumers and encourage robust competition and innovation,” she said.

The Senate unanimously confirmed Clyburn, along with fellow nominee Meredith Baker, to the position last month. With these confirmations, the FCC’s board of commissioners is full once again: Julius Genachowski recently replaced outgoing Kevin Martin as agency chairman, joining Robert McDowell and Michael Copps in the agency’s highest positions.

Clyburn, whose father is House Majority Whip James Clyburn (D-S.C.), previously served on the Public Services Commission in South Carolina where she oversaw utilities regulation. She headed that agency from 2001 to 2004.

Genachowski welcomed Clyburn to the FCC: “Mignon is a dedicated public servant with years of state-level and private-sector experience, and it’s an honor to serve alongside such a talented colleague.”

The Week Ahead: Telecom's New Deal

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From BroadbandCensus.com Weekly Report

WASHINGTON, August 3, 2009 – The Federal Communication Commission’s aggressive press toward a federal broadband policy is the biggest telecommunications policy story at the moment, but there are still other more mundane matters going on at the agency.

Some of those issues, in fact, will likely have a significant impact on the eventual roll-out of broadband across the United States.

Take the marketplace for video competition. Just three short years ago, national video franchises were the key legislative objective of the telephone providers. They pushed for an overhaul of the telecommunications legislation in order to permit them to offer pay-TV without having to obtain county-by-county permission. Telecom law barred offering video services without local permission.


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NoChokePoints Coalition to Combat Special Access Providers

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WASHINGTON, June 23, 2009 – Wireless carriers and consumer advocates joined forces Monday to open a new front in the battle over pricing for “special access” markets.

The newly-formed NoChokePoints coalition brings together a number of unlikely bedfellows that usually clash on many topics, most notably Sprint Nextel and Public Knowledge, in order to battle the “chokehold that these huge phone companies have on the special access market.”

The markets in question are located in rural areas where large wireline carriers are required to lease “backhaul” capacity to both wireless carriers and other internet service providers at  ”special access” points along the so-called middle mile. Coalition members say this creates “chokepoints”  are underregulated, providing opportunities for incumbent carriers to overcharge competitors.

While the telecommunications sector has very little competition in general, there is even less in the special access world, said Public Knowledge president Gigi Sohn. “We are taking special access out of the shadows and into the light where it belongs,” she said.

And while the Obama administration, Congress and the FCC have  highlighted the importance of broadband to the nation’s economic recovery, a coalition spokesman said “it defies explanation that we are still fighting this market abuse” on the middle-mile.

The FCC has done little to solve the problem despite years of notice, said Ad Hoc Telecommunications Users Committee representative Colleen Boothby. “The former FCC [under Kevin Martin] ignored the facts, deregulated these services, and did nothing as prices and profits rose to unprecedented levels,” she said. The incoming FCC must prioritize the problem to end “price-gouging by the incumbent telephone companies,” she added.

Sprint Nextel senior vice president Bob Azzi said high special access rates, which his company pays in approximately 90 percent of markets it served,  reduce broadband availability and create a “broken market.”

The U.S. can look to other nations for an easy solution, said New America Foundation Fellow Sascha Meinrath. Meinrath compared the special access problem in the U.S. to the gasoline market:  ”Imagine if gasoline had a 13,000% mark-up.” He said New America will release a report comparing the two markets in detail later this week.

The Obama administration, specifically FCC Chairman-designate Julius Genachowski, can take action to solve the problem “if we are to meet President Obama’s challenge for broadband in the United States and create the innovation… that will, ultimately, play a vital role in leading America out of this recession,” said TW Telecom Public Sector Vice President Ken Folderauer.

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