Copyright (c) 2009 All rights reserved. http://works.bepress.com/robert_frieden Recent documents in Rob Frieden en-us Thu, 12 Nov 2009 23:24:20 PST 3600 http://works.bepress.com/robert_frieden/18 http://works.bepress.com/robert_frieden/18 Wed, 11 Nov 2009 10:55:37 PST Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks ("NGNs"), particularly if regulations mandate unbundling of services into composite parts, with burdensome interconnection and below market pricing of access by competitors. Both incumbents, prospective market entrants and recent market entrants may seek to tilt the competitive playing field to their advantage typically by securing a regulatory sanction that helps them reduce investment costs, delay having to make an investment, or secure a competitive advantage through reduced regulator-imposed costs. Without assessing the necessity to do so legislators, regulators and judges have accepted the premise that government must create incentives for NGN investment. Incumbent carriers in particular have seized upon the concept of uncertainty as a justification for refraining from making necessary infrastructure investments, despite the onset of declining revenues and market shares in core services. This paper will examine how incumbent carriers in the United States have gamed the incentive creation process for maximum market distortion and competitive advantage. The paper suggests that the U.S. government has rewarded incumbents with artificially lower risk, insulation from competition, and partial underwriting of technology projects that these carriers would have to undertake unilaterally. The paper provides recommendations on how governments can calibrate the incentive creation process for maximum consumer benefit instead of individual carrier gain. Rob M. Frieden Law and Technology Science and Technology Communications Law Computer Law Administrative Law http://works.bepress.com/robert_frieden/17 http://works.bepress.com/robert_frieden/17 Mon, 17 Aug 2009 12:39:20 PDT In far too many instances, the Federal Communications Commission ("FCC") engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion that such ample facilities-based competition exists in broadcast, broadband and wireless markets that the Commission can further reduce ownership caps, approve multi-billion dollar, market concentrating mergers, and claim that the United States continues to benefit from best in class access to telecommunications services. In far too few instances, normal governmental checks and balances do not detect and reverse instances where the FCC has deliberately or inadvertently failed to compile a credible record. Many reviewing courts gladly defer to the FCC's "expertise" rather than appear to second guess, or to legislate from the bench in highly technical matters. One court accepted the FCC's arguments that data about commercial ventures' decisions not to provide broadband service in specific localities constituted a business trade secret qualifying from protection from public disclosure instead of identifying areas of market failure requiring heightened scrutiny in view of the legislative goal of achieving universal access to basic and advanced telecommunications services. Too often, the FCC reaches policy conclusions based on statistical interpretations that do not make sense, and do not have corroboration through peer review. For example, the FCC first concluded that per channel, "ala carte" access to cable television programming would not save consumers' money as an alternative to having to acquire a bundle of channels. However, the Commission quickly subsequently reversed itself with limited explanation for its change in findings. The Commission also erected a media diversity index to support relaxation of a cap on media ownership that a reviewing court rejected based on its lack of supporting evidence. Only after a stinging judicial rebuke did the FCC think to subject its statistical analysis and modeling to external review from unaffiliated experts, rather than simply rely on the research and findings sponsored by stakeholders with a financial interest in the outcome of the Commission's decision. This paper will identify several instances where the FCC could have used empirical research and peer review to achieve a true sense of the marketplace. The paper will suggest ways the Commission could have avoided judicial reversal and public ridicule if it had embraced accepted social scientific practices, including peer review. Rob M. Frieden Administrative Law Communications Law Law and Technology Politics Science and Technology http://works.bepress.com/robert_frieden/16 http://works.bepress.com/robert_frieden/16 Mon, 17 Aug 2009 12:21:26 PDT In far too many instances, the Federal Communications Commission ("FCC") engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion that such ample facilities-based competition exists in broadcast, broadband and wireless markets that the Commission can further reduce ownership caps, approve multi-billion dollar, market concentrating mergers, and claim that the United States continues to benefit from best in class access to telecommunications services. In far too few instances, normal governmental checks and balances do not detect and reverse instances where the FCC has deliberately or inadvertently failed to compile a credible record. Many reviewing courts gladly defer to the FCC's "expertise" rather than appear to second guess, or to legislate from the bench in highly technical matters. One court accepted the FCC's arguments that data about commercial ventures' decisions not to provide broadband service in specific localities constituted a business trade secret qualifying from protection from public disclosure instead of identifying areas of market failure requiring heightened scrutiny in view of the legislative goal of achieving universal access to basic and advanced telecommunications services.Too often, the FCC reaches policy conclusions based on statistical interpretations that do not make sense, and do not have corroboration through peer review. For example, the FCC first concluded that per channel, "ala carte" access to cable television programming would not save consumers' money as an alternative to having to acquire a bundle of channels. However, the Commission quickly subsequently reversed itself with limited explanation for its change in findings. The Commission also erected a media diversity index to support relaxation of a cap on media ownership that a reviewing court rejected based on its lack of supporting evidence. Only after a stinging judicial rebuke did the FCC think to subject its statistical analysis and modeling to external review from unaffiliated experts, rather than simply rely on the research and findings sponsored by stakeholders with a financial interest in the outcome of the Commission's decision. This paper will identify several instances where the FCC could have used empirical research and peer review to achieve a true sense of the marketplace. The paper will suggest ways the Commission could have avoided judicial reversal and public ridicule if it had embraced accepted social scientific practices, including peer review. Rob M. Frieden Communications Law Administrative Law http://works.bepress.com/robert_frieden/15 http://works.bepress.com/robert_frieden/15 Mon, 17 Aug 2009 12:19:00 PDT In far too many instances, the Federal Communications Commission ("FCC") engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion that such ample facilities-based competition exists in broadcast, broadband and wireless markets that the Commission can further reduce ownership caps, approve multi-billion dollar, market concentrating mergers, and claim that the United States continues to benefit from best in class access to telecommunications services. In far too few instances, normal governmental checks and balances do not detect and reverse instances where the FCC has deliberately or inadvertently failed to compile a credible record. Many reviewing courts gladly defer to the FCC's "expertise" rather than appear to second guess, or to legislate from the bench in highly technical matters. One court accepted the FCC's arguments that data about commercial ventures' decisions not to provide broadband service in specific localities constituted a business trade secret qualifying from protection from public disclosure instead of identifying areas of market failure requiring heightened scrutiny in view of the legislative goal of achieving universal access to basic and advanced telecommunications services.Too often, the FCC reaches policy conclusions based on statistical interpretations that do not make sense, and do not have corroboration through peer review. For example, the FCC first concluded that per channel, "ala carte" access to cable television programming would not save consumers' money as an alternative to having to acquire a bundle of channels. However, the Commission quickly subsequently reversed itself with limited explanation for its change in findings. The Commission also erected a media diversity index to support relaxation of a cap on media ownership that a reviewing court rejected based on its lack of supporting evidence. Only after a stinging judicial rebuke did the FCC think to subject its statistical analysis and modeling to external review from unaffiliated experts, rather than simply rely on the research and findings sponsored by stakeholders with a financial interest in the outcome of the Commission's decision. This paper will identify several instances where the FCC could have used empirical research and peer review to achieve a true sense of the marketplace. The paper will suggest ways the Commission could have avoided judicial reversal and public ridicule if it had embraced accepted social scientific practices, including peer review. Rob M. Frieden Communications Law Administrative Law http://works.bepress.com/robert_frieden/14 http://works.bepress.com/robert_frieden/14 Sat, 08 Aug 2009 07:51:35 PDT Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission ("FCC") has statutory authority to require Internet Service Providers ("ISPs") to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values. While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission's regulatory regime inhibits First Amendment protected expression. For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly "walled garden," and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets. Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas. This article will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The article will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The article concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs' joint provision of conduit and content. The article provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs. Rob M. Frieden Administrative Law Communications Law Computer Law Intellectual Property Law Law and Technology Science and Technology http://works.bepress.com/robert_frieden/13 http://works.bepress.com/robert_frieden/13 Wed, 24 Jun 2009 11:30:27 PDT Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission ("FCC") has statutory authority to require Internet Service Providers ("ISPs") to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission's regulatory regime inhibits First Amendment protected expression. For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly "walled garden," and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets. Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas. This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs' joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs. Rob M. Frieden Law and Technology Science and Technology Communications Law Computer Law Administrative Law http://works.bepress.com/robert_frieden/12 http://works.bepress.com/robert_frieden/12 Wed, 29 Oct 2008 12:08:50 PDT Wireless handsets increasingly offer subscribers a third screen for accessing the Internet and video programming. The converging technologies and markets that make this possible present a major regulatory quandary, because national regulatory authorities seek to maintain mutual exclusivity between regulated telecommunications services and largely unregulated information services. Many existing and emerging services do not easily fit into one or the other regulatory classification, nor can the Federal Communications Commission determine the appropriate classification by extrapolating from the regulatory model applied to existing or discontinued services. By failing to specify what model applies to services appearing on cellphone screens, the FCC has failed to remove regulatory uncertainty. Cellular telephone service providers may infer from the Commission's inaction that any convergent service eventually will qualify for the unregulated information service "safe harbor" despite plausible arguments that government oversight remains essential to achieve consumer protection, national security, fair trade practice, and other safeguards. This essay will examine the regulatory status of wireless carrier-delivered video content with an eye toward determining the necessary scope and nature of government oversight. The essay reports on instances where the FCC deemed it necessary to promote video programming competition and subscriber access to wired cable television content, and concludes that wireless subscribers deserve similar efforts in light of wireless carriers' incentives and abilities to blunt competition. The essay concludes that NRAs must balance the carriers' interests in finding new revenue centers to pay for next generation network upgrades with subscribers' interests in maximizing their freedom to use handsets they own. Rob M. Frieden Administrative Law Communications Law Law and Technology http://works.bepress.com/robert_frieden/11 http://works.bepress.com/robert_frieden/11 Mon, 11 Aug 2008 06:04:19 PDT Depending on the source one can conclude that United States consumers enjoy access to a robustly competitive and nearly ubiquitous marketplace for inexpensive broadband Internet access, or they suffer the consequences of a tightly concentrated industry offering inferior service at high rates. On one hand, the Federal Communications Commission ("FCC"), the National Telecommunications and Information Administration ("NTIA") and some sponsored researchers offer a quite sanguine outlook, possibly influenced by their appreciation for the political and public relations dividends in compiling positive results. On the other hand, other statistical compilations and interpretations show the U.S. behind in terms of market penetration and price, even trailing some nations that have similarly unfavorable geographical and demographic characteristics. In the light of the extraordinary global success achieved by domestic ventures in information and communications technology ("ICT"), it would appear counterintuitive for some current broadband statistics to show the United States lagging other nations in terms of favorable access to next generation networks.The FCC has used evidence of robust market penetration and competition in broadband markets to support an aggressive deregulatory campaign. Advocates for even more deregulation regularly cite the Commission's statistics as evidence that the unfettered marketplace can achieve broadband access and affordability goals. Both the Commission and many stakeholders assume the frequently cited statistics present a true picture of the marketplace. A recent NTIA document concludes that the United States has achieved the goal of "universal, affordable access for broadband technology by the year 2007" articulated by President Bush in 2004. This paper will examine the United States broadband penetration and pricing statistics with a critical eye, in light of other contradictory compilations by credible organizations including the International Telecommunication Union and the Organization for Economic Cooperation and Development. Additionally the paper will compare and contrast the FCC's identification of broadband options in the author's home zip code with what actual options the author could identify. The paper concludes that the FCC and NTIA have overstated broadband penetration and affordability by using an overly generous and unrealistic definition of what qualifies as broadband service, by using zip codes as the primary geographic unit of measure and by misinterpreting available statistics. Additionally the FCC includes as competition services lacking any true cross-elasticity with other services based on substantial price differences.The paper concludes that credible calculations, using better calibrated measures, show a mixed outcome based on different geographical focus. Some U.S. residents, particularly in urban locales, enjoy comparatively excellent broadband service, while rural residents may have ample access options, albeit at comparatively high prices in light of limited price competition. The paper concludes that the absence of robust price competition among many facilities-based broadband operators in many areas of the nation challenges many of the assumptions built into recent FCC policy initiatives that seek to abandon consumer safeguards. The paper also concludes that a statutory mandate to promote universal access to advanced telecommunications capability requires the FCC to collect and disseminate credible statistics on next generation network deployment. Rob M. Frieden Communications Law Administrative Law http://works.bepress.com/robert_frieden/10 http://works.bepress.com/robert_frieden/10 Wed, 30 Jan 2008 08:26:45 PST Most subscribers in the United States acquire a subsidized handset when they activate or renew wireless telephone service. In exchange for purchasing a handset below cost, these customers must commit to a two year service term, with substantial financial penalties for early termination, and they must accept carrier-imposed limitations on the use of their handsets. Wireless carriers typically lock subscriber access to one carrier and lock out or thwart unaffiliated providers from providing content, software and applications to wireless handsets. Limitations on the use of wireless handsets juxtaposes with the Carterfone policy established by the Federal Communications Commission ("FCC") forty years ago that requires all telephone companies to allow subscribers to attach any technically compatible device. Consumers take for granted the right to attach any device to a network that is "privately beneficial without being publicly harmful." Only recently have some wireless subscribers come to understand the costs in not having complete freedom to use their handsets. Technically sophisticated users have resorted to "self help" strategies to override carrier locks at the risk of permanently disabling ("bricking") the handset.As wireless networking increasingly serves as a key medium for accessing a broad array of information, communications and entertainment services, the consequences of locked and restricted access becomes more significant. Despite offering common carrier regulated, voice telecommunications, wireless carriers emphasize "next generation" information services, including Internet access, and they seek to operate free of any significant FCC oversight including the duty to comply with the Carterfone policy and to provide a neutral conduit for accessing content. This paper will examine whether wireless carriers have a legal obligation to comply with the Carterfone policy and more broadly what costs and benefits result from government-imposed rules requiring wireless carriers to operate neutral networks. The paper demonstrates that the FCC has applied the Carterfone device freedom and network access policies in a number of instances where the Commission identified the need to prevent network operators from requiring equipment upgrades or replacements that subscribers do not need, because less expensive options exist. The paper concludes that the rising importance of wireless networking and growing consumer disenchantment with carrier-imposed restrictions on handset versatility and wireless network access will trigger closer regulatory scrutiny of the public interest benefits accruing from implementation of a wireless Carterfone policy. Rob M. Frieden Communications Law Computer Law Law and Technology Science and Technology http://works.bepress.com/robert_frieden/9 http://works.bepress.com/robert_frieden/9 Mon, 07 Jan 2008 08:05:27 PST Wireless operators in most nations qualify for streamlined regulation when providing telecommunications services and even less government oversight when providing information services, entertainment and electronic publishing. In the United States, Congressional legislation, real or perceived competition and regulator discomfort with ventures that provide both regulated and largely unregulated services contribute to the view that the Federal Communications Commission ("FCC") has no significant regulatory mandate to safeguard the public interest. Such a hands off approach made sense when cellular telephone carriers primarily offered voice and text messaging services in a marketplace with six or more facilities-based competitors in most metropolitan areas. However the wireless industry has become significantly more concentrated even as wireless networking increasingly serves as a key medium for accessing a broad array of information, communications and entertainment ("ICE") services. As wireless ventures plan and install next generation networks ("NGNs"), these carriers expect to offer a diverse array of ICE services, including Internet access, free from common carrier regulatory responsibilities that still apply to telecommunications services. Wireless carrier managers reject the need for governments to ensure consumers safeguards such as nondiscriminatory access and separating the sale of radiotelephone handsets from carrier services. Critics of wireless regulation claim that government-imposed obligations would create disincentives for NGN investment and have no place in a competitive marketplace.This article will examine the costs and benefits of government-imposed rules that would require wireless carriers to separate sales of handsets from service subscriptions and to comply with network neutrality rules designed to ensure nondiscriminatory access to content. The article will assess the rights of both wireless subscribers and carriers to control how handsets attach to networks and what services the handsets can access. The article will consider whether wireless network access should parallel long established rules for wired networks and will compare wireless network neutrality issues with a preexisting debate about neutral Internet access via wired networks. For example, wireless network neutrality includes consideration of separating Internet access equipment from Internet services, an unbundling principle established for wired networks decades ago. Because wireless carriers package subsidized handset sales often with a blend of ICE services and consumers welcome the opportunity to use and replace increasingly sophisticated handsets, regulators have refrained from ordering handset unbundling. But for other services, such as cable television, the FCC has pursued public safeguards that attempt to allow consumers the opportunity to access only desired content using least cost equipment options. The article also examines why wireless carriers could avoid becoming involved in a network neutrality debate for several years, despite the fact that their common carrier status, vis a vis voice services, provides a statutorily supported basis for imposing nondiscrimination responsibilities. The article concludes that the rising importance of wireless networking for most ICE services and growing consumer disenchantment with carrier-imposed restrictions on handset versatility and wireless network access will trigger closer regulatory scrutiny of the public interest benefits accruing from wireless network neutrality. Rob M. Frieden Law and Technology Science and Technology Communications Law