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At Urging of Competify Coalition of Telecom Competitors, FCC Launches Inquiry of Broadband Business Services

in FCC/IP Transition by

WASHINGTON, October 19, 2015 – The Federal Communications Commission on Friday announced that it had launched an investigation into the broadband pricing plans of local exchange carriers AT&T, CenturyLink, Frontier and Verizon Communications for so-called “special access services” of business data.

A coalition of competitive carriers and non-profit organizations dubbed Competify has been urging the inquiry, and praised Friday’s order by the agency’s Wireline Communications Bureau.

“The incumbents use inherently anticompetitive lock-up plans – which only an entity with immense market power could impose – to charge businesses and anchor institutions excessive access rates that harm competition, restrain the deployment of competitive facilities, and impede the transition to next-generation services,” according to a statement released by the group.

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Among the companies supporting the campaign include BT, Level 3, Sprint and  XO Communications, together with a range of non-profit organizations.

The US Telecommunications Association struck back. Said association president Walter McCormick: “At the very time the commission is expressing concern over the growing dominance of cable in the overall broadband marketplace, and acknowledging that burdensome legacy regulation of telecom companies is misdirecting investment and hindering competition, it launches an old-fashioned ‘tarriff’  investigation of the only competitors in the marketplace who are required to operate under last century’s antiquated rules.”

Specifically, according to the order launching the investigation, the inquiry concerns “only a subset of specialized telecommunications services that continue to operate under tariffs,” namely time-division multiplexed (TDM) business data services such as DS1 and DS3 channel terminations under dedicated copper-based circuits.

“While competitors continue to expand their market presence by building IP [internet protocol]-based facilities or extending purchased TDM based facilities to additional buildings, preliminary results from the Commission’s data collection show that incumbent LECs remain the sole facilities-based provider of TDM-based special access services to a majority of business locations that demand or are likely to demand business data services nationwide.”

Rep. Anna Eshoo, D-Calif., and Rep. Mike Doyle, D-Penn., applauded the FCC’s investigation “that major telecom companies in the U.S. have been stifling competition in the $40 billion a year market for special access.”

“For too long, companies that utilize special access service have alleged that these services are only offered with unreasonable conditions attached, aimed at driving competitors out of this space,” wrote the representatives.

Other articles on the inquiry and Comptetify:

The Hill: http://thehill.com/policy/technology/257227-four-companies-at-center-of-fcc-probe-into-special-access-market

Multichannel News: http://www.multichannel.com/news/fcc/competify-launches-broadband-competition-campaign/394429

Drew Clark is the Chairman of the Broadband Breakfast Club. He tracks the development of Gigabit Networks, broadband usage, the universal service fund and wireless policy @BroadbandCensus. He is also Of Counsel with the firm of Best Best & Krieger LLP, with offices in California and Washington, DC. He works with cities, special districts and private companies on planning, financing and coordinating efforts of the many partners necessary to construct broadband infrastructure and deploy “Smart City” applications. You can find him on LinkedIN and Twitter. The articles and posts on BroadbandBreakfast.com and affiliated social media are not legal advice or legal services, do not constitute the creation of an attorney-client privilege, and represent the views of their respective authors.

Technology Groups, Members of Congress Laud and Criticize Obama’s Net Neutrality Statement

in Net Neutrality by

WASHINGTON, November 12, 2014 – President Obama sparked both praise and anger on Monday when he urged the Federal Communications Committee to classify broadband as a regulated utility under Title II of the Communications Act.

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via Maryland GovPics Flickr

With liberals pushing for Title II regulation and with conservatives decrying more regulation, many observers had seen an alternative route proposed by Federal Communications Commissioner Chairman Tom Wheeler as a “light regulation” compromise. Wheeler’s proposal to utilize a separate section of the law – Section 706 of the Telecommunications Act of 1996 – while still ensuring net neutrality protections, such as baring companies from blocking and throttling web sites.

Many voices have reacted to Obama’s remarks, in which he said: “I believe the FCC should create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online.”

Democratic members of Congress including Rep. Mike Doyle, D-Penn., and Rep. Anna G. Eshoo, D-Calif., released mirroring statements supporting Obama’s remarks, and which included a version of the phrase, “I strongly encourage FCC Chairman Wheeler and the rest of the Commission to adopt the President’s proposal.”

Sen. Al Franken, D-Minn., who is among the most vocal advocates of net neutrality, had equally kind words to say about the president. “I welcome today’s news that President Obama is pressing the FCC to maintain a free and open internet.”

Industry groups were deeply concerned. The Telecommunications Industry Association and the Center for Boundless Innovation in Technology highlighted the politically contentious nature of the president’s action. As Republicans now control both houses of Congress, compromise would have fared better, they said. “A more pragmatic president would have used this opportunity to work with Republicans and the dozens of Congressional Democrats who’ve opposed Title II on a legislative deal – the way that Clinton and Gingrich resolved welfare reform and the key debates of their day,” said TechFreedom.

The move might spur an update of the Communications Act. Rep. Leonard Lance, R-N.J., a ranking member of the Energy and Commerce Committee’s Communications and Technology Subcommittee, has pushed for such legislation since January. His spokesperson told Broadband Breakfast, “Washington bureaucrats should not be regulating the Internet. That’s why Congressman Lance signed a letter today urging the FCC to reject any classification proposals. Only a bipartisan update of the Communications Act passed by Congress will help keep the internet open and free.”

Although FCC Chairman Tom Wheeler has stated that the two are in agreement about net neutrality rules, the president acknowledged that the “FCC is an independent agency, and ultimately this decision is theirs alone.” TechCrunch noted that Wheeler’s quick response to the president’s remarks highlighted hybrid approaches rather than Title II-only or Section 706-only plans.

Broadband Roundup: With Aereo off the Air for Now, Alternatives Seek Advantage, and Legislators Advocate for Municipal Broadband

in Broadband Roundup/Copyright/Wireless by

WASHINGTON, June 30, 2014 -Following the Supreme Court’s blow last week against Aereo, the video streaming service has shut down indefinitely as it drags back into the lower courts. Aereo CEO Chet Kanojia wrote a letter to consumers explaining the decision.

“We have decided to pause our operations temporarily as we consult with the court and map out our next steps,” Kanojia said. “All of our users will be refunded their last paid month…the spectrum that the broadcasters use to transmit over the air programming belongs to the American public and we believe you should have a right to access that live programming whether your antenna sits on the roof of your home, on top of your television or in the cloud.”

Aereo lost last week’s case because the Supreme Court ruled that the service was violating network television providers’ copyright by streaming their programming without paying royalties.

With Aereo gone for now, The New York Times said other streaming companies are scrambling to fill the void by luring former traditional TV customers with their own offers. Hulu, Amazon, Google and Netflix are all developing cheap alternatives.

Roku, Sling Media, TiVo, Mohu and Simple.TV are selling hardware that lets viewers stream television to digital services or view web video on TV sets.

Simple.TV lets users buy their own antenna and the $199 Simple.TV box, which records programs on a connected hard drive. Premium service features automatic recording and remote access from around the globe. And unlike Aereo, The Times said Simple.TV customers capture signals in their homes, which consequently “fits squarely into fair use,” said Simple.TV CEO Mark Ely.

Eight Democratic congressmen led by Sen. Ed Markey, D-Mass., and Rep. Mike Doyle, D-Penn., are vigorously defending municipalities’ rights to build broadband networks. In a letter to Federal Communications Commission Chairman Tom Wheeler, the group wrote that “local communities should have the opportunity to decide for themselves how to invest in their own infrastructure.”

The group called on the FCC to use its “full arsenal of tools” to pre-empt state laws that prevent city-owned broadband.

Speaking of the FCC, Wheeler scheduled a vote in July on rules for closed captioning online video clips for improved accessibility, according to The Hill. While the rules would only apply to online clips of video of video programming that aired on television with closed captions, Wheeler wants all online videos closed captioned in the long run.

The Digital Media Association, which represents Amazon, Apple, Microsoft and Google’s YouTube, warned that “the time and cost of enabling captions is not substantially less for a 2-minute clip than for a 2-hour full-length movie.”

The National Association of Broadcasters voiced similar concern: ““the FCC must shy away from unreasonable demands that would have adverse consequences for viewers by forcing video clips off the Internet.”

Lastly, Akamai Technologies released its 1Q State of the Internet report. It revealed that global Internet speeds have increased by 24 percent over the last year and almost two percent in the last three months.

Energy and Commerce Democrats Counter Republican Charges Over Spectrum-Bidding Measures

in FCC/Mobile Broadband/Spectrum/Wireless by

WASHINGTON, May 16, 2013 – On Thursday, Democratic Representatives Henry Waxman, Anna Eshoo, and Doris Matsui of California, plus Edward Markey of Massachusetts, Diana DeGette of Colorado, and Mike Doyle of Pennsylvania issued a letter to outgoing Federal Communications Commission Chairman Julius Genachowski, responding to Republican members of the Energy and Commerce Committee.

Republicans on the committee had previously expressed concerns that the incentive auctions provided for in the spectrum provisions of the Middle Class Tax Relief and Job Creation Act of 2012 would promote anti-competitive practices. In the letter, Democrats counter that Republicans have neglected key parts of the legislation.

The authors of the letter note that the tax relief act added a new paragraph 17 to section 309(j) of the Communications Act. This paragraph contained two provisions that can be used to prevent any single bidder from acquiring an excessive number of licenses through these incentive auctions.

Subparagraph 17(A) allows all companies that meet certain requirements to bid in these auctions, although they can still be prohibited from bidding on every single block of licenses. Additionally, subparagraph 17(B) maintains the FCC’s ability to limit spectrum aggregation to promote competition.

In neglecting these paragraphs, the Democrats assert, the Republicans are mischaracterizing the legislative history of the provisions that, they contend, properly prevent single bidder from acquiring a large number of license blocks.

Additionally, the Democrats urged the FCC to have confidence in the Antitrust Division of the Department of Justice.

“The Department’s involvement in wireless mergers and its competitive concerns regarding the undue concentration of spectrum have been consistent across both Republican and Democratic administrations,” the representatives said.

World’s First Fair Use Day Attracts Interest – And Signs that Congress Doesn’t Understand It

in Broadband's Impact/Copyright by

WASHINGTON, January 13, 2010 – The consumer advocacy group Public Knowledge on Tuesday hosted the first-ever World Fair Use Day. “Fair use” refers to the defense, under the copyright statute, that permits individuals and businesses to make use of others’ copyrighted material under certain circumstances.

The keynote speaker was Rep. Mike Doyle, D-Penn., who told the attendees how Congress as a whole sees the issue of mixing and mashups – they don’t understand it.

Additionally, Doyle defended the rights of artists and reaffirmed his support of the doctrine. He also warned about actions being taken by the U.S. trade representative in the Anti-Conterfeiting Trade Agreement negotiations. And he acknowledged that many congressional officials want the process to be more transparent:

“I join with Senators Bernie Sanders, Sherrod Brown in wanting deliberations to be more public, and I’m very interested in hearing the answers to Senator Wyden’s letter from last week asking the US Trade Rep to respond to allegations like the one I just outlined. If ACTA is to succeed – and it might – the United Kingdom has it right when it says that “transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumors. We believe the lack of transparency is unhelpful and do not believe that it is in the public interest.”

The chief complaint which was brought forth by most of the artists in attendance was that companies are more likely to sue them for copyright infringement than to work with them.

One exception to that rule was Dan Walsh, creator of the massively popular website http://garfieldminusgarfield.net. He was paid by copyright holder Paws, Inc., to edit and put together a collection of comics which was then published into a book.

Another organization supporting the Fair Use Day was Microsoft. The software giant, typically seen as an aggressive supporter of its own copyright, has created an end-user license agreement to make modifications to its Xbox game content.

Microsoft said that “so long as you respect these rules, Microsoft grants you a personal, non-exclusive, non-transferable license to use and display Game Content and to create derivative works based upon Game Content, strictly for noncommercial and personal use.” However, the company also said that “We can revoke this limited use license at any time and for any reason.”

The second panel of the day focused on best practices and how teachers, archivists, film makers and students. Many complained about how they were subject to the vagaries of courts’ interpretations of Fair Use.

Under Section 107 of the Copyright Act, which codifies the common law of Fair Use, courts are to consider four factors in determining whether a particular infringing use is excused by Fair Use defense:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work
  5. The event brought together lawyers, policy makers and artists to talk about the various issues regarding the subject.

Videos of each of the panels can be seen here.

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