Something to consider before restructuring the FCC . . .


The Chief Economist of the Federal Communications Commission is a temporary position—with a term of a year or so of late—typically bestowed on economists with impressive credentials and experience related to media or telecommunications. Having worked at the FCC long enough to overlap with several chief economists, I noticed an interesting pattern. Many join the FCC full of hope—capable as they are—that they will reform the agency to better integrate “economic thinking” into regular policy decisions, but to quote a former colleague, “leave the agency with their sense of humor intact.”

I have heard many a former FCC economist rail against the lack of economic thinking at the FCC, with some former chief economists going very much on the record to do so (for instance, see here and here). Others (not necessarily affiliated with the FCC) have gone as far as to point out that much of what the FCC does or attempts to do is duplicative of the competition policies of the Department of Justice and Federal Trade Commission. These latter points are not a secret. The FCC publicly says so in every major transaction that it approves.

For example, in a transaction that I have had the pleasure to separately write about with one of the FCC’s former chief economists and a number of other colleagues, AT&T’s acquisition of former competitor Leap Wireless (see here and here), the FCC wrote (see ¶ 15):

Our competitive analysis, which forms an important part of the public interest evaluation, is informed by, but not limited to, traditional antitrust principles. The Commission and the Department of Justice (“DOJ”) each have independent authority to examine the competitive impacts of proposed communications mergers and transactions involving transfers of Commission licenses.

This standard language can be found in the “Standard of Review” section in any major FCC transaction order. The difference is that whereas the DOJ reviews telecom mergers pursuant to Section 7 of the Clayton Act, the FCC’s evaluation encompasses the “broad aims of the Communications Act.” From a competition analysis standpoint, a major difference is that if the DOJ wishes to stop a merger, “it must demonstrate to a court that the merger may substantially lessen competition or tend to create a monopoly.” In contrast, parties subject to FCC review have the burden of showing that the transaction, among other things, will enhance existing competition.

Such duplication and the alleged lack of economics at the FCC has led a number of individuals to suggest that the FCC should be restructured and some of its powers curtailed, particularly with respect to matters that are separately within the purview of the antitrust agencies. In particular, recently, a number of individuals in Donald Trump’s FCC transition team have written (read here) that Congress “should consider merging the FCC’s competition and consumer protection functions with those of the Federal Trade Commission, thus combining the FCC’s industry expertise and capabilities with the generic statutory authority of the FTC.”

I do not completely disagree—I would be remiss if I did not admit that the transition team makes a number of highly valid points in its comments on “Modernizing the Communications Act.” However, as Harold Feld, senior VP of Public Knowledge recently pointed out, efforts to restructure the FCC present a relatively “radical” undertaking and my main motivation in writing this post is to highlight Feld’s point by reminding readers of a recent court ruling.

In 2007—well before its acquisition of DIRECTV and its offer of unlimited data to customers who bundle its AT&T and DIRECT services—AT&T offered mobile wireless customers unlimited data plans. AT&T later phased out these plans except for customers who were “grandfathered”—those customers who signed up for an unlimited plan while it was available and never switched to an alternative option. In October 2011, perhaps worried about the implications of unlimited data in a data hungry world, AT&T reduced speeds for grandfathered customers on legacy plans whose monthly data usage surpassed a certain threshold—a practice that the FTC refers to as data throttling.

The FTC filed a complaint against AT&T under Section 5 of the FTC Act, alleging that customers who had been throttled by AT&T experienced drastically reduced service, but were not adequately informed of AT&T’s throttling program. As part of its complaint, the FTC claimed that AT&T’s actions violated the FTC Act and sought a permanent injunction on throttling and other equitable relief as deemed necessary by the Court.

Now here is where things get interesting: AT&T moved to dismiss on the basis that it is exempt as a “common carrier.” That is, AT&T claimed that the appropriate act that sets out jurisdiction over its actions is the Communications Act, and not the FTC Act. Moreover, AT&T’s position was that an entity with common carrier status cannot be regulated under the section that the FTC brought to this case (§ 45(a)), even when it is providing services other than common carriage services. This led one of my former colleagues to joke that this would mean that if AT&T were to buy General Motors, then it could use false advertising to sell cars and be exempt from FTC scrutiny.

The District Court for the Northern District of California happened to consider this matter after the FCC reclassified mobile data from a non-common carriage service to a common carriage service (in its Open Internet Order), but before the reclassification had gone into effect. The Court concluded that contrary to AT&T’s arguments, “the common carrier exception applies only where the entity has the status of common carrier and is actually engaging in common carrier activity.” Moreover, it denied AT&T’s motion because AT&T’s mobile data service was not regulated as common carrier activity by the FCC when the FTC suit was filed. However, in August 2016, this decision was reversed on appeal by the U.S. Court of Appeals for the Ninth Circuit (see here), which ruled that the common carrier exemption was “status based,” not “activity based,” as the lower court had determined.

Unfortunately, this decision leaves quite a regulatory void. To my knowledge, the FCC does not have a division of Common Carrier Consumer Protection (CCCP), and I doubt that any reasonable individual familiar with FCC practice would interpret the Open Internet Order as an attempted FCC power grab to attempt to duplicate or supplant FTC consumer protection authority. Indeed, the FCC articulated quite the reverse position by recently filing an Amicus Curiae Brief in support of the FTC’s October 2016 Petition to the Ninth Circuit to have the case reheard by the full court.

So what’s my point? Well first, the agencies are not intentionally attempting to step on each other’s toes. By and large, the FCC understands the role of the FTC and the DOJ and vice versa. Were AT&T to acquire General Motors, it is highly probable that given the state of regulation as it stands, employees at the FCC would find it preferable if the FTC continued to oversee General Motors’ advertising practices. A related stipulation applies to the FCC’s competition analysis. Whereas the analysis may be similar to that of the antitrust agencies, it is motivated at least in part by the FCC’s unique mission to establish or maintain universal service, which can lead to different decisions being made in the same case (for instance, whereas the DOJ did not challenge AT&T’s acquisition of Leap Wireless, the FCC imposed a number of conditions to safeguard against loss of service).

Of course, one could argue that confusion stemming from the above case might have been avoided had the FCC never had authority over common carriage in the first place. But if making that argument, one must be cognizant of the fact that although the FTC Act predates the Communications Act of 1934, prior to 1934, it was the Interstate Commerce Act, not the FTC Act, that lay out regulations for common carriers.  In other words, legislative attempts to rewrite the Communications Act will necessitate changes in various other pieces of legislation in order to assure that there are no voids in crucial protections to competition and consumers. Thus, to bolster Harold Feld’s points: those wishing to restructure the FCC need to do so being fully aware of what the FCC actually does and doesn’t do, they must take heed of all the subtleties underlying the legislation that lays the groundwork for the various agencies, and they should be mindful of potential for interpretation and reinterpretation under the common law aspects of our legal system.

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Hollywood Fever Afflicts AT&T by A. Michael Noll


by A. Michael Noll

October 23, 2016

© 2016 AMN

One can only wonder in amazement over the Hollywood fever that seems to afflict communications business in the United States. The proposed acquisition of Time Warner by AT&T shows that the disease is still flourishing.

Time Warner creates and owns content. It is a media entertainment company, owning such content as CNN and Warner Brothers. The former Baby Bells had a strange fascination with Hollywood and the world of content. They did not seem content with their monopolistic control of the conduit, and today do not seem content with their duopolistic control of the conduit. AT&T – the former Baby Bell SBC – wants both: conduit and content, although these businesses are quite different in terms of such areas as technology, economics, and management. The proposed acquisition of Time Warner by AT&T simply does not make sense, other than as a manifestation of past weirdness.

A little over 30 years ago, AT&T broke apart the Bell System by divesting the regional Bell telephone companies. Then, in 1991 AT&T acquired NCR in an attempt to enter the computer business. AT&T knew nothing of computers, and about five years later spun off the computer operations. AT&T’s acquisitions had become a revolving door, and were clear evidence of nonsensical strategic planning.

Ultimately, AT&T itself became such a thin shell of its past grandeur that SBC Communications, which then cloaked itself in the AT&T identity, acquired it. There was hope that the nonsense that had plagued AT&T would be left behind in the acquisition. However, the proposed acquisition of Time-Warner by AT&T indicates that the weird behavior and nonsense is still there.

Back in the early videotex days of the 1980s, AT&T was content with providing terminals and the conduit, while Knight-Ridder provided the database and the content. It seems that the past history is yet again being ignored. AT&T recently expanded its conduit by acquiring the satellite TV business of DirecTV. AT&T did not have the broadband needed for the local delivery of TV and thus had to acquire it. Verizon’s FiOS has that bandwidth. With AT&T’s proposed foray into Hollywood, how will Verizon respond?

Perhaps government regulators will decide that the ownership of content and conduit by the duopolistic AT&T is not acceptable. If so, then AT&T will be saved from its own illness. If AT&T has such funds to waste in the pursuit of Hollywood, then perhaps instead it should decrease its rates and more truly compete in its duopolistic businesses – and invest in improving its infrastructure.

A. Michael Noll

A. Michael Noll

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“LTE Unlicensed” Deployments Planned for 2016


In the last post in this series I reviewed several different points of view regarding the pros and cons of cellular carriers using “LTE Unlicensed” (LTE-U) to expand their network capacity. In this post I’ll take a closer look at movement in this direction among U.S. carriers.

[Note: The deployment of LTE in unlicensed bands is referred to by multiple names, including “LTE Advanced in unlicensed spectrum,” “LTE Unlicensed” (LTE-U) and, most recently “Licensed Assisted Access” LTE (LAA). In this post I’ll refer to it as LTE-U, though other names may appear in some excerpts included in the post.]

The two U.S. cellular providers that have so far expressed most enthusiasm for LTE-U are Verizon and T-Mobile.

Reporting from the Mobile World Congress held March 2-5 in Barcelona, Spain, Mike Dano wrote the following in the March 3 FierceWireless online newsletter:

[B]ased on the discussions I’ve had this week, it appears that Verizon…, Vodafone and other carriers last year decided they wanted to make LTE-U a reality–and they decided they didn’t want to wait for the 3GPP to standardize the technology. So they teamed up with some network technology companies to design real-world tests of the technology…

Verizon clearly has high hopes for the tests and the technology–it has said that it plans to commercially deploy it in the 5 GHz and 3.5 GHz bands in 2016. Verizon is not the only carrier that supports LTE-U/LAA. T-Mobile announced this year that it too will deploy what it calls LAA in the 5 GHz band in 2016. T-Mobile CTO Neville Ray said he believes the carrier can get LAA-capable handsets this year.

As Dano notes, “[h]owever, not all carriers are on board.” Specifically, he points to comments from Tom Keathley, senior VP of wireless network architecture and design for AT&T. As one might expect from a carrier that has invested in a network of more than 30,000 WiFi hotspots, AT&T’s concerns include the risk that LTE-U deployments will not share unlicensed spectrum fairly and efficiently with WiFi.

Keathley said that current approaches to LTE-U are vague about how exactly to check for existing users in unlicensed bands, and how long LTE users can occupy unlicensed spectrum.

Dano also cites comments from Eric Parsons, an executive at Ericsson, a leading wireless network equipment vendor, regarding how these spectrum sharing issues might be dealt with in different regions of the world. As Parsons explains, “there are very specific guidelines in Europe and Japan that cover these areas, but countries like the United States don’t have specific guidelines.”

T-Mobile, which has less licensed spectrum to work with than its competitors (see here for T-Mobile CEO John Legere’s perspective on this issue), seems particularly interested in LTE-U. In anticipation of commercial deployments in 2016, it has announced plans for multiple tests of the technology, in cooperation with Alcatel-Lucent and Qualcomm, Ericsson and Nokia.

In a January 5, 2015 blog post T-Mobile chief technology officer Neville R. Ray shed some light on the company’s plans:

Currently, there is approximately 550 MHz of underutilized spectrum in the 5 GHz Unlicensed National Information Infrastructure (UNII) band, which is available for any use within the FCC’s rules for the UNII band. LAA is a new and innovative approach that allows for licensed and unlicensed spectrum to work seamlessly together. And, we’ve already begun work with our various chipset, radio infrastructure and device partners to bring LAA production trials to life this year and bring the technology to our customers in the near-future.

During T-Mobile’s February 19, 2015 yearend earnings call, Ray provided an update on the company’s LTE-U plans:


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