Like Water For Spectrum

You can now download the paper I wrote for a Mass Communications class I took during the fall semester (also with a more practical title): Water Law Principles Applied to Spectrum Opportunities for Wireless Rural Broadband (PDF — 37 pages – with links) (Google Docs – without links).

In the paper, I recommend that the FCC utilize principles from water law to open up radio spectrum to encourage mobile/wireless broadband in rural areas.

From the introduction:

The Federal Communications Commission (FCC) issued an order, [the White Spaces Order], in November 2008 to free up  unused radio spectrum in the television frequency band for unlicensed use by low power devices. A  goal of the order is to help lower the costs of entry to potential wireless broadband providers by making more spectrum available for free to businesses and consumers.

One shortcoming in relation to rural users is the order’s failure to address backhaul between a rural  community and backbone networks. Frequencies in the television spectrum that are the focus of the  White Spaces Order do not lend themselves well to point to point communication necessary for longer  distance backhaul from a community to a backbone connection point. Without access to spectrum for  backhaul, rural communities will be forced to rely on other alternatives such as more expensive fiber cables. As such, the Commission will need to provide spectrum that is better suited for backhaul required for viable and economic high speed Internet services in rural communities. To that end, I suggest that the Commission apply three modified principles of water law that: 1) require spectrum use  be beneficial and reasonable; 2) require the licensee to actually use the spectrum and not hold a license  for speculative purposes; and 3) provide for equivalent replacement of a communications signal.

Applying these principles will free up unused and underutilized spectrum for more productive purposes including point to point backhaul connections.

Continue reading: Water Law Principles Applied to Spectrum Opportunities for Wireless Rural Broadband (PDF — 37 pages – with links) (Google Docs – without links).

My draft opinion holding up FCC v. Fox

My Administrative Law take-home midterm asked that I step into the shoes of a Supreme Court clerk and draft an opinion for FCC v. Fox, the fleeting expletives case. Naturally, because it is for Admin Law, it does not address the First Amendment issues that I think the Court should address. I liked the assignment since it made me think long and hard about the legal issues involved.

I. Draft decision upholding Fox, 489 F.3d 444 (2nd Cir. 2008), with regard to A.P.A. issues.

A. Statutory Interpretation

We find that the FCC impermissibly changed its interpretation of the term ‘indecent’ as used in the governing statute, 18 U.S.C. § 1464, which bars indecent content from broadcast radio and television.

In the order at issue, the FCC changed not only its policy toward indecent content but its interpretation of the term ‘indecent’ provided in the statute, 18 U.S.C. § 1464. As such, the Chevron v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984) framework governs our review of the Commission’s construction. Congress has delegated to the Commission the authority to â??execute and enforceâ? the Communications Act, 47 U.S.C. § 151, which provides the FCC with power to regulate indecent content on broadcast radio and television. The Commission has the power to deliver administrative sanctions, such as sending cease and desist orders or revoking licenses, 47 U.S.C. § 312, and also to assess criminal forfeiture penalties, 47 U.S.C. §503(b)(1)(D).

Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. Nat’l Cable and Telecommunications Assoc. v. Brand X Internet Svc., 545 U.S. 967, 986 (2005). As a first step we ask whether the statute’s plain terms â??directly address the precise question at issue.â? Brand X at 986. If the statute is ambiguous on the point, we defer, at step two, to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Id.

In the first step of the Chevron analysis, we look at whether the statute directly defines the term ‘indecent’ or if the term, as used, is ambiguous. The statute, 18 U.S.C. § 1464, states in full: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” It is clear that Congress intended that no indecent language be used in radio communication but we find that indecent is not clearly defined thus leaving this portion of the statute ambiguous.1 The ambiguous nature of the term can be seen in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), in which the plurality opinion and concurrence had two different ideas about what qualified as indecent. Both felt the term meant â??patently offensiveâ? but differed in opinion about what qualified as such. The plurality opinion identified the plain meaning of indecent as â??merely referring to nonconformance with accepted standards of moralityâ? Pacifica at 741 and merely accepted that it was equivalent to patently offensive. The concurrence felt the term was more narrow, finding that the George Carlin monologue could be classified as “indecent” only because “the language employed is vulgar and offensive… [and] was repeated over and over as a sort of verbal shock treatment.” 438 U.S. At 757. (Powell, J., concurring). It is also through the ambiguous nature of the term indecent that the Commission’s rules operate and why it felt it necessary to change its policy as to what qualified.

We next proceed to step two of the Chevron analysis. If the statute is ambiguous on the point, we defer to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. Brand X at 972. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Brand X at 844. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. When the legislative delegation to an agency is implicit, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Brand X at 844. This is true, even when the agency is changing rules, policies, and how it interprets a statute. Chevron at 863. Such a change, however, must provide a reasoned analysis to depart from prior precedent.

Here, the Commission has an implicit delegation to fill the statutory gap with regard to what is indecent. Through that delegation, the Commission changed how it interprets the term indecent to have a broader meaning than it had used in the past. Previously, the Commission had held that language was indecent if used to depict or describe sexual or excretory activities. In the order at issue, the Commission broadened the meaning of indecent when it determined that all uses of the words â??fuckâ? (the “F-Word”) and â??shitâ? (the “S-Word”) in all contexts depict or describe such activity. Golden Globes Order, 19 F.C.C.R. 4975, 4978. This is the case, with a single, isolated non-literal utterance of the word. For example, Bono’s statement, â??really, really fucking brilliant,â? in reaction to winning a Golden Globe award is considered indecent, although his use of the word did not involve sexual or excretory functions. Golden Globes Order at 4975. As pointed out by the lower court, prior to the Golden Globes decision the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime. Fox Television Stations, Inc. v. FCC, 489 F.3d 444,455 (2nd Cir. 2007).

We find that the Commission provided very limited reasoning as to its new, broader interpretation of the term indecent.2 Rather, it largely relied on its dismissal of previous interpretations of the term indecent as dicta and staff letters. It did provide some reason why it was changing policy with regard to how it would enforce the rule, however it did not discuss its new interpretation of the statute.3 The Commission simply announced that the “core meaning” of certain expletives is always indecent (Golden Globes at 4978), thus expanding the definition of the term indecent, although it had repeatedly held those same terms not indecent in the past.

B. Substantive Decision

Furthermore, we also find that the Commission failed to provide an adequately reasoned analysis for its change in policies and rules with regard to its its interpretation of the statute.

When an agency undertakes “a reversal of policy,” the APAâ??s mandate of reasoned decision making requires it to “adequately explain the reasons” for the change. Brand X at 981. Moreover, “[a]n agencyâ??s failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making.” Ramaprakash v. FAA, 346 F.3d 1121, 1125 (D.C. Cir. 2003) (Roberts, J.).

Here, the Commission failed to provide a rational connection to between the â??first blowâ? theory its policies regarding fleeting expletives or provide adequate reasoning to explain away the conflict between its current policy to consider a fleeting expletive a harmful â??first blowâ? and the prior 30 years when it did not. As pointed out in the court below, there is no identifiable or judicially manageable standard provided by the Commission for the first blow theory underlying its policy change. The Commission held that it had changed the definition of what it considers indecent to include all uses of the F-Word and S-Word to protect viewers (including children) from taking the first blow when an expletive is used. It then provided exemptions for some uses of expletives but not others. For example, it provided exemptions for expletive used during the Early Show and the movie Saving Private Ryan but not for the same expletives used during the Billboard Music Award programs. In which case, the Commission’s justifications relying upon the â??first blowâ? theory were undermined. Viewers to each program still took the â??first blowâ? and were subjected to the offending word(s). In each case, the Commission subjectively determined whether that particular instance was more deserving of an exemption than the others. It is unclear what standards the Commission used for each determination.

The decision by the lower court is affirmed and this matter remanded to the Commission.

1We intentionally do not address any constitutionality in this portion of our opinion. We assume, for sake of argument that this statute and the Commission’s rules with regard to indecent content are are Constitutional.

2 This Court cannot substitute a reasoned basis for the agency action if the agency did not proffer it first. Courts confine evaluations of agency action to reasons articulated by the agency itself. State Farm at 50. See also Chenery (“the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.”).

3 The dissent argues that the Commission did not change its interpretation of the statute and merely changed its enforcement policies based on how it had always defined the term indecent. The issue in this case is whether the FCC has adequately explained its decision to broaden the definition of “indecent” when it abandoned a standard limited to “verbal shock treatment” based on sexual or excretory function in favor of a presumption of indecency that must be rebutted with specific mitigating circumstances.

*Update:* The real Supreme Court disagrees with me. Justice Scalia, joined by 4 other justices, said that the FCC adequately followed the Administrative Procedures Act (A.P.A.) and declined to rule on the First Amendment issues. The matter was remanded to the appellate court, which can then reconsider the First Amendment issues.

Digital Converter Box is here

I used the analog to digital converter box coupon card this past weekend. So now we can still get TV after the super bowl when the transition to digital television is complete. It is an RCA brand converter box.

I don’t generally shop in Wal*Mart (ruthless and toothless); however the converter box cost $10 after the coupon ($50 retail price). That beat the $65 charged by Radio Shack for a no brand item.

The nice thing I found out about this box is that it includes a V-Chip intended to let parents filter out inappropriate content from their youngsters. It is likely that most people who rely on the government coupons to purchase a converter box will not have televisions built since 2000 when the V-Chip was mandated. The program is still a boondoggle, just not as big as I had previously made it out to be.

In case you still are not aware of the television transition, these are the dates you need to be aware of:

  • January 2, 2008 – Digital to analog converter coupon program becomes available. * Coupons are now available.
  • February 17, 2009 – Last day for analog broadcasts.
  • February 18, 2009 – Analog broadcasts will be turned off. Televisions will need a digital tuner, digital-to-analog converter box, or cable/satellite subscription.

Digital Television Converter Coupons Are Here

I wrote about the need to sign up to receive coupons for the analog to digital television converter coupons back in January (See: Digital Television Transition: Start Preparing Now). Our two coupons arrived this week.

The envelope:

Analog to Digital Converter Coupon

A coupon:

Analog to Digital Converter Coupon

They came with a list of qualified converter boxes and a list of local retailers (all big box stores) that sell them.

Analog to Digital Converter Coupon

This whole television transition is one big bloated boondoggle. These stores and the converter box makers scored with this one. For one, the coupons are good only with stand-alone devices that will convert the signals and not for multi-purpose devices like VCRs, televisions, etc. that build in a converter. Two, television broadcasters don’t need to pay a penny for their broadcast licenses. Three, the converters are expected to cost $75 or more. Four, the converter boxes don’t even include a V-chip (this was a missed opportunity to get a V-chip in every home). There is more to complain about, but I’ll spare myself the time and effort. 😉

Book closed

The book for the fall semester is now closed. It was brutal but I’m finally done with it.

I turned in my Mass Communications paper at 4:55 p.m. Thursday (Jan. 10), with five minutes to spare. I had intended to finish it a few days earlier but was knocked out with the flu last weekend. Who am I kidding? I would have still turned it in Thursday afternoon, regardless. 😉

My paper argues for Congress and federal regulators to scrap the current communications regulatory regime.

Traditionally, the federal government has taken a silo approach to communications regulation. In other words, each mode of communication is considered and regulated differently.

Think of grain silos rising above the plains like a row of overseers. Each silo holds and isolates a specific type of grain, protects it from the elements, and prevents mixing with the other grains. Similarly, traditional communications regulatory silos isolate individual forms of communication â?? as well as their respective sets of regulations â?? from each other. There are silos for broadcast television and radio, cable television, satellite television, cable Internet access, digital subscriber line (DSL) Internet access over a copper telephone line, telephone service over a copper line, and so forth.

As a result of the silo approach, each mode of communication is controlled by a separate set of regulations, even those that carry the same, exact content. For example, broadcast television and cable television both show audio/visual content on a television set, yet each is governed by different content regulations. Those content regulations in turn receive different standards of review by courts, which allow the government to continue its disparate treatment of the two. That’s why swearing is more allowable on cable television but not on broadcast television.

In the same way, the current regulatory approach also isolates and provides differential treatment of communications services using the same physical conduit. For example, one set of regulations govern cable television while a separate set of regulations govern cable Internet access, even though both media forms utilize the same physical cables.

In contrast to the silo approach to regulations, a layered regulatory framework would raze distinctions between the types of communication and instead focus on the functional portions of a communications network used to transfer content. Such a layered regulatory approach would treat similar content similarly, independent of source, service type, and destination. The model that works best contains four layers: content, application, logical, and physical. If you need a visual analogy, think of the layers stacked like pancakes.

By creating regulatory layers based on functions of a network, the regulatory process would better take into consideration the similarities and differences between the different modes of communication and the technology platforms that underlie each and thus eliminate the disparate â??siloâ? regulations that arbitrarily govern identical content differently.

The argument is very wonkish. If you’re geek enough and wish to read all 39 pages, including footnotes, please do. Razing the Silos: An Argument For A Layered Communications Regulatory Framework (PDF). It is just a term paper, but I intend to keep working on it over the next several years and eventually submit it to law journals for publication.

Digital Television Transition: Start Preparing Now

Read this if you want to guarantee that your television will still work after the 2009 Superbowl. Even more importantly, you will also need to make sure your mothers, grandmothers, or aunties know the following since they will need your help to sort through this mess and are less likely to know what’s going on.

The United States is currently undergoing a transition from regular analog television signals to a digital format (DTV). This is often referred to as the DTV transition. With traditional analog technology, pictures and sounds are converted into waveform electrical signals for transmission through the air. In contrast, digital technology converts these pictures and sounds into a stream of digits consisting of zeros and ones for transmission. In other words, the digital signal is in the same format as video on your computer (MPEG-2).

Analog format is how television has been broadcast since it first started in the 1930’s. All televisions since that time have been built to receive and decode those analog signals.

Digital television format is the future. Digital transmission of television signals provides several advantages compared to analog transmission, such as enabling better quality picture and sound reception as well as using the radio spectrum more efficiently than analog transmission. This increased efficiency makes multicastingâ??where several digital television signals are transmitted in the same amount of spectrum necessary for one analog television signalâ??and HDTV services possible. A primary goal of the DTV transition is for the federal government to reclaim spectrum that broadcasters currently use to provide analog television signals. It is auctioning off that spectrum (likely to mobile phone providers) in January 2008 so there’s no turning back.

Here’s the rub. A television must be built to receive and decode the digital signal. Televisions built before 1998 were ONLY built to receive analog signals. Since then, only some televisions have been built with a digital tuner to receive digital signals. Televisions sold after April 2007 must have a digital tuner, although anecdotal stories abound regarding stores not meeting those obligations. If you bought a television since then, you’ll need to verify it has a digital tuner.

Today, most television stations throughout the country provide a digital broadcast signal in addition to their analog signal. Within hours of the 2009 Super Bowl the analog signals will turn off for good. That means televisions built without a digital television tuner will not be able to receive over the air television.

The Federal Communications Commission (FCC) has a web site that provides more information regarding the DTV transition.

It all depends on how you receive your television signal and your television set itself. There are three primary ways people receive television programming: over the air reception, cable, or satellite.

1) Over the air broadcasts: Don’t laugh because 19% of American households (20.8 million households) still rely on the rabbit ears. I’m part of this 19%.

This group will either need to buy a new television with a digital tuner or buy a digital to analog converter box. Estimated price of the converter box is $75.

The federal government is providing $40 coupons for these people to purchase the digital to analog converter box. Request a coupon: According to the coupon request form, TV converter boxes are not expected to be available in retail stores until late February or early March. You should sign up now; however you will not receive your coupon until after converter boxes are available in stores. The Coupon will expire 90 days after the date it is issued.

The federal department responsible for the program has a web site that provides more information regarding the coupon program, such as rules and the coupon request form.

2) Cable: No need to do anything. You’ll still receive your local and cable stations without fail. Just make sure you take care of those who are likely not to subscribe to cable (see above), such as your grandmother, aunties, and the neighborhood granny who looks after your home while you’re at work or school. A rallying cry should be “No grannies left behind.” 😉

Currently, federal law requires cable companies to carry broadcast stations when asked by the local broadcaster. Those must-carry provisions require cable companies to provide the broadcastersâ?? signals to their subscribers in substantially the same format as it was received from the broadcasters. That’s why cable subscribers should be unfazed by the DTV transition.

Note: If you don’t have digital cable, you will only receive your local stations, such as PBS, ABC, and NBC, in analog format.

3) Satellite: Satellite doesn’t have the same must-carry obligations as cable systems so you’re likely to continue receiving the same stations you did before the DTV transition.

Of course, if you bought a television that receives digital signals you can still receive over the air broadcasts. I’ve heard the HD picture quality from over the air broadcasts is actually better than is provided by digital cable. I haven’t tested it yet, but I wouldn’t be surprised since cable companies will want you to subscribe to their HD services.


  • January 2, 2008 – Digital to analog converter coupon program becomes available. * Coupons are now available.
  • February 17, 2009 – Last day for analog broadcasts.
  • February 18, 2009 – Analog broadcasts will be turned off. Televisions will need a digital tuner, digital-to-analog converter box, or cable/satellite subscription.

John Edwards and Obama both call for an Open Media For The 21st Century

I need to say that John Edwards understands America’s communications policy needs. He’s been open for months about his thoughts regarding what he calls Open Media. Now Obama has picked up on Edwards’ message and has introduced his own policy guideline/pledge and tied an open media to innovation and the economy. I like the sound of what both say. I can only hope it isn’t just smoke and mirrors.

John Edwards for President-One America, Many Voices: Open Media For The 21st Century
“The basis of a strong democracy is a diverse and dynamic media. It’s time to take away the corporate media bullhorn and let America’s many voices be heard.” â?? John Edwards

  • Fighting Media Concentration
  • Restoring the Public Interest to the Public Airwaves
  • Building a Universal, Affordable Internet
  • Keeping an Open Internet
  • Tuning in Thousands of Communities with Low Power Radio

Barack Obama ’08 Blog: Obama rolls out innovation agenda
â??I will take a backseat to no one in my commitment to network neutrality. Because once providers start to privilege some applications or web sites over others, then the smaller voices get squeezed out, and we all lose. The Internet is perhaps the most open network in history. We have to keep it that way.â? – Barack Obama

  • Ensure the Full and Free Exchange of Information through an Open Internet and Diverse
    Media Outlets

    • Protect the Openness of the Internet
    • Encourage Diversity in Media Ownership
    • Protect Our Children While Preserving the First Amendment
    • Safeguard our Right to Privacy
  • Create a Transparent and Connected Democracy
    • Open Up Government to its Citizens
    • Bring Government into the 21st Century
  • Deploy a Modern Communications Infrastructure
    • Deploy Next-Generation Broadband
  • Employ Technology and Innovation to Solve Our Nationâ??s Most Pressing Problems
    • Lower Health Care Costs by Investing in Electronic Information Technology Systems
    • Invest in Climate-Friendly Energy Development and Deployment
    • Upgrade Education to Meet the Needs of the 21st Century
    • Create New Jobs
    • Modernize Public Safety Networks
  • Improve Americaâ??s Competitiveness
    • Invest in the Sciences
    • Make the R&D Tax Credit Permanent
    • Reform Immigration
    • Promote American Businesses Abroad
    • Ensure Competitive Markets
    • Protect American Intellectual Property Abroad
    • Protect Intellectual Property at Home
    • Reform the Patent System

I haven’t seen any similar commitments from the Republican candidates.