The Auction, the Cops, and Comcast
The Auction, the Cops, and Comcast
The Auction, the Cops, and Comcast

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    The 700 MHz auction is just ahead. Bidders will soon be filing their applications, and the auction itself is supposed to start by Jan. 24.

    This is the big event for telecommunications policy in the U.S. One recent online story says that “it’s almost like the powers-that-be decided to auction off the land in the Grand Canyon or Central Park in New York City.” It could affect the competitive landscape for U.S. wireless providers and change the way broadband reaches rural areas in this country.

    Re-reading the final rules [warning: enormous PDF] in light of recent events, though, makes for a little less optimism. You’ll remember that Chairman Martin at the last minute succeeded in slipping in limited “no locking, no blocking” elements into the rules.

    In particular, as long as the reserve price for the C Block is met the first time it is auctioned, “a C Block licensee may not block, degrade, or interfere with the ability of end users to download and utilize applications of their choosing on the licensee’s C Block network, subject to reasonable network management.” And the FCC “will require only C Block licensees to allow customers, device manufacturers, third-party application developers, and others to use or develop the devices and applications of their choosing in C Block networks, so long as they meet all applicable regulatory requirements and comply with reasonable conditions related to management of the wireless network (i.e., do not cause harm to the network).”

    The Cops

    The Department of Justice has filed a “deficiency petition” (explanation here) in connection with CALEA compliance. This deficiency petition is likely to become an FCC document requesting comments (an NPRM). This NPRM will cover providers of any type of broadband internet access service (phone, cable modem, wireless, whatever) – the entities that the FCC has already said are covered by CALEA.

    It will also cover “interconnected VoIP services,” which include any applications that are capable of connecting to the traditional phone networks.

    The NPRM, if it follows the DOJ’s request, will suggest (among other things) that all of these providers should build their routers and network hardware to provide “packet activity reporting” for all packets crossing their networks, and physical location information for all of their customers at all times. It will also suggest that very fine-grained timing information is needed – something that the internet and its applications don’t provide at the moment. “Packet activity reporting” means that the broadband provider will need to know the destination IP address and port number for everything happening on its network.

    The idea is that these designs will help law enforcement when they want to carry out a request for call-identifying information.

    Here’s the tie-in to the auction rules: if these CALEA requirements are adopted by the Commission, there will be at least two consequences for the C Block auction winner. First, the winner will need to allow for the cost of the upgraded routers/switches etc. that are capable of providing this CALEA information as part of their bid. For a new entrant, this will be a big deal. Second, the winner will be able to say that it cannot permit any applications or devices to be used on its network that frustrate the network provider’s ability to provide this information to law enforcement.

    (This is clear in the auction rules: “Wireless providers [subject to the C Block conditions] are not required to permit attachment of any device or application that would interfere with the provider’s obligations to comply with applicable regulatory requirements…” – at paragraph 216.)

    So much for lowering barriers to entry for a new wireless competitor – and for making the platform truly “open access.” If the network provider has to be completely answerable to law enforcement for detailed information about everything that travels across its wireless network, then nothing will be done without the network provider’s permission. That’s where we are today, and that’s the situation that the open access rules have been touted as changing.


    Apologies to Comcast – everyone else is probably doing it too – but “reasonable network management” can cover a host of activities. We’re seeing that right now. The auction rules say that “C Block licensees cannot exclude applications or devices solely on the basis that such applications or devices would unreasonably increase bandwidth demands,” but there may be many other reasons for applications or devices to be degraded or mistreated. The use of the word “solely” makes that sentence provide slim (or no) protection. Here’s another sentence from the auction rules: “Wireless service providers may continue to use their own certification standards and processes to approve use of devices and applications on their networks so long as those standards are confined to reasonable network management.”

    Through the skillful use of ad hoc, one-off certification standards and “reasonable network management,” a lot of openness can be avoided.

    ===No great conclusions here – just watching the threads knit together. With any luck, any CALEA and “reasonable network management” opining will be done by the next FCC, not this one.

    *Cross posted from [Susan Crawford blog](*