The original filing is available in PDF format.
On June 3, 2008, Jef Pearlman and Ari Abramowitz of Public Knowledge, Harold Feld and Elizabeth Broomfield of Media Access Project, Ben Scott of Free Press, and Michael Calabrese of the New America Foundation met with Chairman Kevin Martin and Brent Greenfield. The purpose of the meeting was to discuss several issues regarding AWS-3 spectrum, particularly its service rules.
We covered four major issues in this meeting: the negative consequences of a proprietary interface, prioritization of network capacity, the mechanisms of content filtering, and spectrum allocation.
Marlene H. Dortch, Secretary
Federal Communications Commission
Office of the Secretary
445 Twelfth St., SW
Washington, DC 20554
Re: Notice of ex parte presentation in: WT Docket No. 07-195
Dear Ms. Dortch:
On June 3, 2008, Jef Pearlman and Ari Abramowitz of Public Knowledge, Harold Feld and Elizabeth Broomfield of Media Access Project, Ben Scott of Free Press, and Michael Calabrese of the New America Foundation met with Chairman Kevin Martin and Brent Greenfield. The purpose of the meeting was to discuss several issues regarding AWS-3 spectrum, particularly its service rules.
We covered four major issues in this meeting: the negative consequences of a proprietary interface, prioritization of network capacity, the mechanisms of content filtering, and spectrum allocation.
Proprietary Interface
The parties observed that the license conditions on the premium service would likely be similar to the open access rules imposed on C-block and encouraged the Commission to ensure that the open access rules of both AWS-3 and C-block were equally strong. We agreed that the goal of providing broadband-class nationwide wireless access to all Americans is of critical importance, but also emphasized that such access must conform to an open applications standard to realize its full potential. A proprietary interface would remove much of the benefit of an otherwise open standard. If licensees were allowed to charge license fees for devices or software that use the network, such a system could exclude developers, stifle innovation, and undermine the purpose of an open application, open device network. Thus, the licensee should not be permitted to block applications, and should engage in only protocol-agnostic bandwidth management to address congestion (for instance, by reducing equally the connection speed for every IP address during the period of congestion). The parties also pointed out that there would be no need for an exception to the open applications rules for filtering if the only filtering was voluntary and opt-in, as those who requested filtering would not simultaneously attempt to evade it.
Prioritization of Network Capacity
We asserted that a rule allowing licensees to cap the bandwidth available for free service at 25% would create an incentive for licensees to deliberately degrade the quality of the free service as a means of inducing consumers to upgrade to the premium service. This would thwart the Commission’s goals as embodied in the broadband policy statement (FCC 05-101) as well as the Commission’s purpose of getting DSL-class access to all Americans. We therefore suggested that the 25% of bandwidth allocated for free service should be a minimum rather than a maximum, such that in the absence of congestion, the full bandwidth is available to both services, and that even when congested, the free service did not drop below 25% bandwidth. We agree that such a rule would not require the licensee to offer any individual free user more than 768 kbps.
Content Filters
The parties noted that a mandatory content filter would likely violate 47 U.S.C. § 326 and the First Amendment. Such a mandate would certainly be tested in court and would potentially undermine the goal of rapid deployment if struck down. We would not, however, object to an entirely opt-in system, which would also present less legal risk. We therefore suggested that an opt-in filtering system could be modeled on 47 U.S.C. § 230(d), under which ISPs are required to provide notice to users for obtaining filtering mechanisms. This would avoid setting the bad precedent of installing a filtering mechanism on the network itself. We suggested that ISPs could even provide the filtering software that users would then have the choice to install on their devices, thereby keeping Constitutional challenges at bay. We briefly discussed FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and 47 U.S.C. § 326, suggesting that even opt-out censorship involves a before-the-fact screening of material and may run afoul of § 326, which permits only sanctioning of material after the fact. We affirmed that bandwidth can be managed in a content-neutral manner in a congested wireless system, and that therefore content filtering would be unnecessary to effectively manage a licensee’s network.
In accordance with Section 1.1206(b), 47 C.F.R. § 1.1206, this letter is being filed electronically with your office today.
Respectfully submitted,
Jef Pearlman
Equal Justice Works Fellow
Staff Attorney
cc:
Kevin Martin
Brent Greenfield
