The enormous PDF of the rules came out on Friday evening last week. There is a lot here to chew through, but some highlights leap out:
1. Those Carterfone protections don't mean too much. The no-locking, no-blocking requirements are hedged in by substantial limitations: the winning licensee will be able to lock and block devices and applications as long as they can show that their actions are related to "reasonable network management and protection," or "compliance with applicable regulatory requirements." In other words, as long as the discrimination can be shown to be connected (however indirectly) to some vision of "network management," it will be permitted. (Discrimination "solely" for discrimination's sake is prohibited, but that's not too difficult to avoid.)
Among other limitations, the license winner will be allowed to continue to use its own (non-standardized) certification standards and processes to approve uses of devices and applications on their networks, will be allowed to protect the "safety and integrity" of their networks against non-carrier applications and devices, and will be permitted to restrict use of its network to devices "compatible with [the carrier’s] network control features." Additionally, carriers will have the ability to deny interconnection to handsets and applications that are unable to provide location-information via the carrier’s E911 system (a system that is controlled by the carrier itself).
All of these elements will provide any incumbent carrier that wins this auction with ample slow-roll capability. It will be very difficult for non-carrier application providers and device manufacturers to work through the incumbent’s certification processes.
2. The "reserve price" gambit is quite astounding. Martin's arrangement for very limited open access is accompanied by a novel escape clause: if the license block that had been conditioned on limited no-locking, no-blocking requirements fails to sell for at least $4.6 billion, it will be re-auctioned in smaller chunks without any conditions applied.
Commr. Copps disagrees with this “reserve price” approach, saying “[t]he procedure in this Order carries chilling risk to the success of the auction. If some of these blocks do not fetch the bid prices stipulated, perhaps because of gaming of the worst sort, they will be re-auctioned with weaker build-out requirements. If the 22 MHz block, where we hope for Carterfone open access principles, fails to elicit a $4.6 billion bid, it will be re-auctioned without Carterfone open access. In the end, all of this micro-managing virtually hands industry the pen to write the auction rules and to constrict all the opportunities this spectrum held forth. The end result could be: same old, same old. What a pity that would be!”
There are many, many devils in these details.
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Monday, August 13
by
Susan
on Mon 13 Aug 2007 06:32 PM EDT
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