Updates from Patrick McFadden Toggle Comment Threads | Keyboard Shortcuts

  • Patrick McFadden 11:56 am on March 30, 2020 Permalink  

    Dead Giveaway: A Massive Spectrum Handout in the 6 GHz Band Based On Remarkably Little Usage of Existing Wi-Fi Spectrum 

    Multi-hundred billion-dollar companies like Facebook and Google are asking the Federal Communications Commission (FCC) to provide free access to a stunning 1,200 megahertz of spectrum that includes the entire 6 GHz band. To put that amount of spectrum in context, that’s over 17 times the amount of spectrum sold during the broadcast spectrum incentive auction and more than four times the amount of spectrum scheduled to be auctioned in the C-band later this year. Indeed, this 1,200 megahertz giveaway would be one of the largest swaths of spectrum ever made available at one time. And Facebook, its tech company brethren and their newfound cable partners want it for free.

    Facebook’s justification for this massive handout is that the airwaves these Silicon Valley companies rely on today for Wi-Fi, including the 5 GHz band and the 2.4 GHz band, are overcrowded. But are they?

    Let’s take a look at what Facebook and its many friends say about current Wi-Fi usage in the 5 GHz band. After a thorough review of half a million access points, a Broadcom-sponsored study found that Wi-Fi users are using less than 7 percent of the available spectrum during peak usage 99 percent of the time. It gets worse: less than 1 percent of spectrum is being used 90 percent of the time.


    Why on earth would Broadcom concede this remarkable fact? Simple. They’re playing a tricky game of three-band monte. They want to hype up the demand for Wi-Fi by saying other bands are overcrowded but at the same time try to placate 6 GHz incumbents about fears of future interference by downplaying their 5 GHz use. Either the other bands available for Wi-Fi use are severely underutilized and the FCC should abandon the proposed giveaway of the entire 6 GHz band, or those bands are in fact heavily used and incumbents should be extraordinarily concerned about the potential for harmful interference.That doesn’t exactly paint a picture of a spectrum emergency. Contrary to their claim of “ever-increasing congestion in currently-available unlicensed spectrum,” these companies admit that a huge swath of the airwaves available to them right now is, in fact, drastically underutilized.

    It’s more than a little tough to swallow giving away 1,200 megahertz worth of mid-band spectrum to cable companies, Google and Facebook right after we spent two and a half years trying to free up mid-band spectrum in the C-band to avoid “losing the race to 5G.” But it’s impossible to do so when they’ve admitted that a good chunk of their current spectrum sits unused the vast majority of the time.

    Rather than proceed with this unprecedented giveaway, the FCC should proceed purposefully but cautiously. First, the Commission could take a huge win and make the lower 500 MHz of the 6 GHz band available for unlicensed use now. That still represents a tremendous amount of spectrum for Wi-Fi. Second, issue a further Notice of Proposed Rulemaking exploring whether additional Wi-Fi spectrum is actually necessary, how to protect incumbent users including broadcast and public safety mobile users and whether other options for the band should be considered. Once the horse has left the spectrum barn, it’s very hard to get those megahertz back. And after all, according to Broadcom’s own data, we’re not exactly in a hurry.

  • Patrick McFadden 2:31 pm on September 3, 2019 Permalink  

    300 MHz and I’ll Throw in Floor Mats: Why Haggling Won’t Help the C-band Proceeding 

    In the coming months, the Federal Communications Commission (FCC) will begin to make final policy determinations concerning a slice of spectrum known as the C-band. The C-band is currently used by satellite operators to distribute content for networks and programmers to broadcasters and plays a critical role in a reliable content distribution system that viewers and listeners rely on today. At the same time, the C-band is attractive spectrum for wireless carriers that seek to add “mid-band” spectrum to their portfolios. The FCC’s challenge is how to provide additional spectrum for mobile broadband services while ensuring viewers and listeners are protected from outages and service disruptions. Central to that challenge is the question of how much spectrum can be reallocated while protecting content distribution.

    The satellite operators themselves have stated that the right number is 200 MHz and have demonstrated how they can accommodate content distribution in the remaining 300 MHz. Whether one agrees with that or any other amount is not a matter of personal preference, but a technical, scientific one. There’s either enough capacity to distribute content using a certain amount of spectrum or there’s not. If there isn’t, forcing satellite operators to come up with 300 MHz for wireless companies has serious, real-life consequences, such as forcing content onto less reliable distribution platforms (e.g., fiber). That could lead to service disruptions or outages.

    Unfortunately, the distinction between a technical, fact-driven policy proceeding and one where the sides are just trading numbers appears to elude some observers who really ought to know better. Last week, New Street’s Blair Levin, a former FCC official, suggested that an alternative proposal to replace C-band distribution with fiber has given the FCC “significant negotiating leverage” with the satellite operators. Respectfully, that assessment is not only inaccurate, but, more importantly, it’s irrelevant.

    First, an alternative proposal only gives you leverage in a transaction if it’s credible. In this case, the proposal to which Mr. Levin refers hasn’t been endorsed by a single programmer or network. It’s an ill-conceived, transparently self-interested proposal that has no chance of working in any reasonable timeframe. It’s also almost comically poorly timed, given that the FCC just released a report regarding CenturyLink’s 37-hour nationwide fiber network outage. If you’re buying a new car, trying to negotiate by telling the dealer you can get a better deal on a unicorn isn’t going to help.

    Second, the focus on leverage misapprehends the central challenge before the Commission, which is not purely transactional, as Mr. Levin suggests. The FCC isn’t haggling over the price of a car, it’s effectively trying to figure out how many wheels the car needs to operate safely. Facts and physics determine that answer, not negotiating leverage. While the FCC in Mr. Levin’s day may have operated in that manner, this one has not and should not. If the satellite operators say 200 MHz can be reallocated and others really want 400 MHz, the solution isn’t to browbeat the operators into giving up 300 MHz and throwing in a rustproofing treatment. Rather, the solution is to look at the information the operators have submitted regarding their transition plan and determine how much capacity can be made available without driving the entire American content ecosystem into a ditch.

    To its enormous credit, the FCC has taken a pragmatic and cautious approach so far in this proceeding and shows every indication that it will continue to do so. That means ignoring calls to take advantage of perceived leverage to try to force an outcome that satellite operators and content providers simply cannot make work with existing technology. We hope the FCC continues down this prudent course so that we all don’t end up with a lemon.

  • Patrick McFadden 1:54 pm on July 31, 2019 Permalink  

    The Disease of More: Getting to the Right Number, Not the Highest Number, for C-Band 

    The conventional wisdom in the communications arena is that the United States is engaged in a race to be the first nation to deploy the next generation of wireless technology: 5G. But while many insist on the importance of winning the “Race to 5G,” we somehow can’t quite get out of the starting blocks.

    Central to the policy debates over the Race to 5G is a swath of 500 megahertz (MHz) of spectrum affectionately called the “C-band.” Today, over 100 million households in the United States rely on this spectrum band most have never heard of. Satellite companies use C-band spectrum to deliver television and radio programming to broadcasters and others across the country. This C-band spectrum serves as the backbone of television and radio content distribution to American viewers and listeners.

    The Federal Communications Commission (FCC) is currently considering how best to reallocate a portion of the C-band for new wireless services, while ensuring that the remaining amount can continue to support this critical content distribution system. To date, the Commission has given every indication that it appreciates the importance of both these goals; changes are coming to the C-band, but the FCC certainly doesn’t want to lay the groundwork for disastrous and unpredictable consequences to television and radio service.

    Accordingly, up to this point, the FCC has been working as quickly and responsibly as it can to resolve the critical questions regarding what to do with the C-band: how much of the band to reallocate for wireless services, how to accomplish the reallocation, how to ensure continued robust content distribution and how to oversee a complex reallocation process. That process has led to a consensus that it is possible to reallocate a portion of C-band spectrum while protecting television viewers and radio listeners from disruption. Further, a consortium of satellite companies has demonstrated that they can make 200 MHz of spectrum available in the very near future while continuing to accommodate programming distribution in the remaining 300 MHz. While certain details still must be worked out, including the mechanism for the sale of spectrum to wireless companies and the interference rules to ensure a peaceful coexistence between wireless and satellite operations, a 200/300 split has emerged as a bird in the hand that would allow the FCC to move forward quickly without running the risk of programming disruptions.

    Unfortunately, because of pressure from competing interests, the FCC has been reluctant to take the win. The devastating consequence is that the C-Band Alliance, a consortium of satellite operators that currently use the C-band, is feeling undue pressure to come up with even more than 200 MHz to reallocate for wireless services. This pressure will lead to bad results for consumers across the country. As they themselves have insisted to the FCC and their customers, there is simply no reasonable way for satellite operators to provide the same level of service to their existing customers if they must immediately surrender more than 200 MHz.

    The facts haven’t changed. Only the level of pressure on the satellite operators has.

    If we’re really in a race, shouldn’t we start running? There’s a win staring us all in the face – reallocating 200 MHz of C-band spectrum as quickly as possible while protecting critical content distribution infrastructure in the remaining 300 MHz. A relentless insistence on getting to a higher number for the sake of getting to a higher number carries real risk of breaking the content distribution system that viewers and listeners depend on today.

    Moving on the 200 MHz we know can be done today without harming the existing content distribution system does not mean that additional spectrum cannot be reallocated in the future. This does not have to be the end of the process. The Commission can revisit the C-band as technology evolves and alternative distribution mechanisms become more viable. But forcing a messy, disruptive and delayed result for multiple industries for the sake of a higher number of megahertz right now seems to benefit no one.

    We urge the Commission not to make “more” the only goal of this proceeding. The reliable and ubiquitous delivery the C-band affords cannot be duplicated by fiber or spectrum in alternative bands. That seamless reliability and ubiquity is critical to preserving the value of the content ecosystem hundreds of millions of Americans enjoy today. If playoff games, prime time programming or breaking news coverage is interrupted because of decisions the Commission makes in this proceeding, viewers and listeners will not care how much more spectrum the FCC has cleared for next generation wireless services – they will only care how much less reliable their programming has become.

  • Patrick McFadden 9:11 am on November 9, 2017 Permalink  

    New American Hustle: Cable Opposes a Free, Innovative Service for Viewers 

    In one week, the Federal Communications Commission (FCC) will vote to approve the voluntary use of a new broadcast television transmission standard, Next Generation TV. This standard has the potential to revolutionize the viewing experience, offering consumers a better product and enhancing competition in the delivery of video programming. This is an exciting moment for the broadcast industry, television viewers and fans of innovation and competition in the video programming marketplace.

    You might think it would be hard to line up against innovation and a superior free service. Unfortunately, when anything benefiting consumers involves free, over-the-air TV, some special interest groups are ready to put on a show to demonstrate their opposition.

    Later today, the New America Foundation will be hosting a panel discussion on the upcoming FCC vote to authorize Next Gen TV. New America assembled a panel of five guests representing the American Cable Association, the American Television Alliance, NTCA – the Rural Broadband Association, Consumers Union and the Alliance for Taxpayer Protection. If you’re scoring at home, that’s three cable panelists, two “public interest” groups and a #techinterestgroup host. (Actually, one of the cable panelists is the outside counsel for another, so maybe it’s just two and a half cable panelists? Or is it one and two halves? I digress.)

    Every one of these groups has expressed concerns about Next Gen TV before the FCC. They have all largely focused on the cable talking point that broadcasters will somehow use retransmission consent negotiations to compel carriage of Next Gen signals at pay-TV consumers’ expense. In fact, two of the panelists and the moderator himself got together for a press call on October 26 to bash the Next Gen TV proposal on just those grounds. This panel is not a discussion, in other words, it’s a stage play in service of the pay-TV industry. Perhaps New America is looking for a new funder beyond Google?

    Now, again, three (kind of three?) of these folks are cable representatives. You can understand their self-interest in stymying competition so they can continue their uninterrupted and ongoing quest to bilk their customers with fees and extraneous charges as long as possible.

    But for the consumer groups, this is puzzling. First, just as a matter of optics, it takes serious chutzpah to call yourself a consumer advocate and show up as the chorus line for cable companies. After all, these are some of the most hated companies in America precisely because they are so effective at demonstrating their ongoing commitment to not caring at all about their customers. Second, as a substantive matter, wringing your hands over technological innovation in support of a free competitive option – the only free option – in the video market is…well, let’s charitably describe it as counterintuitive.

    New America’s staging of this cable opera is particularly galling. New America has devoted substantial time and energy to flogging its clients’ patrons’ donors’ pet projects around getting spectrum for free at the direct expense of existing broadcast services viewers rely on. Broadcasters also have substantial and unparalleled public interest obligations attached to their spectrum; obligations that New America has fervently attempted to help half-trillion dollar companies avoid while they pursue access to free spectrum.

    Here’s the bottom line. Broadcasters are seeking permission to invest their own capital to offer a better service to viewers without government mandates or subsidies while maintaining their current obligations. It’s obvious why this might concern pay-TV competitors. But if “consumer advocates” can’t see the public benefit in next week’s FCC decision, it might be time to audition for a different role.

    In the meantime, I hope rehearsals for today’s show are going well. I expect they are; after all, everyone has the same lines.

  • Patrick McFadden 10:36 am on July 5, 2017 Permalink  

    2 Fast 2 Spurious – Microsoft’s Vacant Channel Plan is a Sequel We Don’t Need 

    Summer movie season is well underway, bringing a fresh crop of would-be blockbusters in the form of original movies and familiar sequels. Sequels, of course, are a tricky proposition. For every sequel that arguably improved on the original (“Godfather II,” “Before Sunset,” “Magic Mike XXL”) dozens more serve as stark reminders of the perils of revisiting a played-out concept (I see you hiding in the corner, “Speed 2”).

    Microsoft is currently reminding fans why some sequels should never be made. The latest entry in the tech giant’s Vacant Channel franchise is yet another heist movie based on a con game that’s too clever by half.

    According to Microsoft, it is urgent that the Federal Communications Commission reserve a vacant UHF white space channel in every market nationwide following the post-auction repack of broadcast television stations, and Microsoft maintains this reservation can be accomplished without causing harm to television stations.

    That’s nonsense on its face. The proposal is either unnecessary, because there will be plenty of spectrum, or it is harmful, because there will not be enough. If you were playing musical chairs with someone and he told you, “you must reserve that chair for me, but don’t worry, there are plenty of chairs for everyone,” you would rightly be suspicious. The post-auction repack is essentially a game of musical chairs for displaced low power stations. Microsoft is telling the Commission: (1) it needs to have a chair reserved for unlicensed use, but that (2) there will be no effect from that reservation on anyone else. One of those assertions is untrue.

    Microsoft also claims that only the reservation of spectrum can provide the regulatory certainty that Microsoft needs to increase investment in white space technology. But the truth is the Commission just held a lengthy auction of the very spectrum Microsoft claims it so urgently desires. If Microsoft were interested in increasing investment, it had an unprecedented opportunity to get guaranteed access to 600 MHz spectrum with a nationwide footprint. Instead, Microsoft is trying to convince the Commission to give Microsoft a backdoor frequency allocation with exclusive access to that spectrum for free, and on better terms than winning auction bidders received.

    Microsoft also already made this play a decade ago. The company asked for spectrum and the Commission granted it, free of charge, in 2010. Since then – despite elaborate promises of investment and innovation – Microsoft and others have done next to nothing to invest in or make worthwhile use of that spectrum.

    White space innovation and deployment continue to be largely mythical. Fun fact: there are probably more shots of gear shifts in the first seven Fast and the Furious movies – 311 – than there are white spaces devices providing Internet service in the United States.[1]

    Microsoft undoubtedly has dreams of a Vacant Channel expanded universe. “Vacant Channel 2: Wireless Boogaloo.” “Vacant Channel 3: I Still Don’t Know What You Did With That Spectrum Last Summer.” “Vacant Channel 4: Clippy’s Revenge.” (Spoiler alert: Gal Gadot defeats Clippy with a staple remover.)

    But the truth is, we don’t need any more sequels. We already know how they all end – with unfulfilled promises and guilt over eating too much popcorn. The Commission has better things to do this summer.

    [1] The TV White Spaces database has around 800 devices total across the nation. Based on the number of test devices and the locations of the registered devices, we estimate that less than 300 are actually providing Internet service to homes.

  • Patrick McFadden 11:36 am on May 3, 2017 Permalink  

    Rules, Schmules 

    Although it’s one of only four nationwide wireless carriers and has its corporate roots in a foreign state-run monopoly, T-Mobile fancies itself the brash outsider in the wireless marketplace. The company touts itself as the “Un-carrier.” It doesn’t play by the same rules as other wireless carriers, and it’s not afraid to say so.



    Pursuing that self-image can be a slippery slope, however. Like a teenage boy playacting at being a rebel by growing his hair out, wearing a leather jacket to class and stealing a car for a joyride, T-Mobile sometimes overdoes it. For example, T-Mobile was recently cited for marketing “unlimited” data plans while in reality throttling heavy data users and has also been the subject of recent stories alleging fraudulent, predatory cramming and upselling practices. One might suggest that the company has gotten a wee bit carried away with this whole “breaking the rules of wireless” thing.

    T-Mobile also has a small problem with accuracy, or what some might call the truth. Let’s not forget that T-Mobile is the company that went to absurd lengths in stomping its magenta sneakers about the need for the Federal Communications Commission (FCC) to set aside spectrum in the incentive auction for everyone not named AT&T and Verizon, going so far as to come up with the world’s most pathetic superhero movie to try to make its point. According to T-Mobile, this set-aside was critical to prevent Verizon and AT&T from foreclosing the Un-carrier’s access to “low-band” spectrum.

    Was it though? At the end of the day, Verizon and Sprint didn’t even bid in the auction, and AT&T barely scratched the auction’s surface, spending a fraction of what T-Mobile did. Oops. Our bad, guys.

    Since no one seemed to notice that T-Mobile was full of, let’s say, “magenta,” T-Mobile figured it would raise its game. The company hired an economist to estimate how many stations would be repacked following the auction. Never mind that the economist in question was previously best known for predicting that wireless carriers would bid $84 billion in the incentive auction. Yes, that guy definitely had a lot of credibility.

    Has anyone pointed out that T-Mobile and its trade association had it all wrong? Nope.

    At this point, we are all almost daring T-Mobile to stay on its “Un-carrier” or “We-don’t-follow-any-rules” roll. As Charlie Ergen would say, as long as no one notices, why not go bigger, bolder?

    Taking a page from the DISH auction playbook, T-Mobile’s CEO, John Legere, decided to blatantly ignore the FCC’s strict rules against talking about the auction results before the end of its official “quiet period,” and instead boasted about T-Mobile’s self-proclaimed success. While other bidders dutifully obeyed the FCC’s mandatory quiet period, T-Mobile figured that it had gotten away with just about everything else, so why bother containing its excitement.

    We’ll see if the government has anything to say about T-Mobile’s willingness to flaunt its rules in this instance and whether the powers that be will finally catch on to T-Mobile’s pattern of “Un-following” the rules and playing fast and loose with “Un-facts.” Yes, the FCC should take experienced auction player T-Mobile to task for its plain violation of the rules. But the government should also take a moment to ponder the pattern and wonder just how much it can take T-Mobile at its “Un-word.”

    What the FCC does next has important implications for broadcasters and their viewers across the country. T-Mobile’s latest project is to cram – no pun intended, I swear – down everyone’s throat a nearly wholesale reorganization of broadcast television stations in record time. Never mind if it relies on faulty assumptions and heavy handshakes and leaves underserved communities without access to over-the-air television or radio. Hey, rules are meant to be broken, right?

    Trouble is, they aren’t. T-Mobile should be held to the same standard as everyone else. The FCC can no longer rely on T-Mobile’s now consistently dubious claims. The company has fallen in love with its Un-carrier status so much so that it believes the rules – the FCC’s, the Federal Trade Commission’s or the laws of physics – no longer matter. But the rules are there to protect American consumers, and we have little doubt this FCC will now enforce them.

  • Patrick McFadden 11:05 am on February 27, 2017 Permalink  

    Radio Silence 

    Relocating television stations to new channels following the close of the TV broadcast spectrum incentive auction will be the most complex transition the Federal Communications Commission has ever overseen. We know that many stations will be repacked, we know that there are constraints on the resources available to perform this work, and we know there are hugely complex interference relationships between broadcast television stations.

    But we don’t yet have a full picture as to which stations will be moving to new channels, and what the ramifications of those moves will be. For example, many towers that are home to repacked television stations are also home to FM radio stations, which are not being repacked.

    During the incentive auction rulemaking, NAB and others asked the Commission to allow repacked television stations to reimburse other broadcasters, including FM stations located near repacked television stations, for costs those stations might incur during the repack. It seems reasonable to us that, if an FM station, an innocent bystander to the repack, needs to construct alternative facilities to stay on the air during repacking work performed on a nearby television station, this should be considered a reasonable expense associated with the repack. The FCC disagreed, citing the language of the legislation authorizing the incentive auction.

    Regardless, those FM stations and their millions of listeners are still there. They still face the real possibility that repacking may disrupt their operations, even though they have literally nothing to do with the incentive auction. Work on nearby television antennas may require FM stations to reduce power, or seek alternate facilities. A repacking plan that does not take FM stations into consideration risks depriving listeners of local radio on which they rely. The right answer is to coordinate repacking efforts to minimize disruption, while also reimbursing bystander stations for costs they incur to maintain service – not to make them collateral damage.

    Over the coming months, the scope of work for the repack will become increasingly clear. The FCC has already informed television stations, confidentially, of their new channel assignments, and in April we expect the FCC to release this information publicly, providing a more definite understanding of the post-auction landscape. A balanced, reasonable repacking plan will treat all stakeholders fairly, including all affected broadcast stations, whether they are repacked or not.

  • Patrick McFadden 11:12 am on December 9, 2016 Permalink  

    ATVA’s New Trick: Slow Rolling Next Generation TV 

    The American Television Alliance (ATVA), one of the leading voices of the pay-TV industry, has a big problem. Up until now, ATVA’s primary raison d’être (that’s French for “how do we get people to keep funding us”) has been retransmission consent. When pay-TV companies want to resell programming from local television stations, they typically negotiate with local stations for that right. ATVA’s entire policy agenda revolved around trying to drive up its members’ profit margins by talking the government into interfering in private contractual negotiations on their behalf.

    Unfortunately, ATVA had a bad year in that regard. Not a routinely bad year, more of a Charlie Sheen meltdown kind of year. ATVA’s retransmission consent campaign fell completely flat.

    (In fairness, in order to prevail, ATVA would have to convince the government that your cable company is actually a sympathetic victim that just can’t quite squeeze enough money out of you every month. This was always a long shot.)

    Having failed to hoodwink regulators into profitable market manipulation, ATVA is desperately seeking to raison a little more être heading into 2017 to justify continued contributions from its pay-TV benefactors. And ATVA thinks it has just the ticket: stifling innovation to protect its members from competition.

    In April, broadcasters, together with representatives of the consumer electronics industry and public safety, asked the Federal Communications Commission (FCC) to allow broadcasters to voluntarily use a new transmission standard that can offer better pictures, better sound, enhanced emergency alerting and expanded opportunities for diverse programming. It’s called Next Generation TV, and we think you’re going to love it.

    ATVA knows this. Some of its members are beginning to offer 4K, ultra-high-definition programming, as are over-the-top service providers. If you’ve shopped for a television set lately, you know that 4K capability is becoming ubiquitous. It certainly seems to be where the market is headed. The only way broadcasters can offer such programming, and thus the only way consumers have the option of receiving this programming for free, is if the FCC allows broadcasters to deploy Next Generation TV.

    And voila, ATVA’s 2017 membership renewal campaign: Slow Rolling Innovation to Protect Pay-TV Providers from Competition! (They’re still workshopping that slogan.) Want to take advantage of your new 4K television? If ATVA can stall approval of Next Gen TV, you won’t have a free over-the-air option for ultra-high-definition programming. ATVA’s members will be the only game in town. That ought to keep the checks rolling in!

    So ATVA is earnestly advising the FCC that it should take special care to understand whether Next Gen TV “would allow broadcasters to collect the benefits of the transition…while externalizing much of the associated costs to others.”[1] They’ve even italicized benefits and costs to make sure the FCC notices.

    There’s just one problem with ATVA’s 2017 fundraising drive: it’s transparently, embarrassingly anti-consumer. Stunning pictures, more immersive audio, enhanced emergency alerts and more diverse programming? Those are all benefits for consumers. Broadcasters are not seeking to externalize costs; they are expressly seeking permission from the FCC to make significant investments in their facilities to improve the service they offer – without government subsidies, without additional spectrum and without leaving viewers behind. It’s one thing to paint yourself into a rhetorical corner, it’s quite another to actually highlight the words paint and corner to make sure no one misses them.

    We’re confident the FCC, once again, won’t be fooled. ATVA will just have to go back to the drawing board.

    [1] Letter from Mike Chappell, Executive Director, ATVA to Marlene H. Dortch, Secretary, FCC, GN Docket No. 16-142 (Dec. 2, 2016) (emphasis in original).

  • Patrick McFadden 12:50 pm on June 24, 2016 Permalink
    Tags: DISH,   

    Dishceptive Advertising 

    It’s not at all uncommon for us to find ourselves marveling at DISH’s signature cocktail of chutzpah and hypocrisy. DISH is the common denominator in roughly three out of four service disruptions resulting from retransmission consent impasses, yet, when its customers lose access to programming they value because of DISH’s intransigence, DISH brazenly rolls out a carefully orchestrated campaign to blame broadcasters in an effort to secure regulatory favors from the FCC. In DISH’s latest broadcaster hold-up – this time with Tribune Broadcasting – it has taken things one step further and publicly announced it is suing its negotiating partner in federal district court. And, upon reading the complaint, we have to admit that DISH has really outdone itself this time.

    DISH’s suit concerns advertisements and websites Tribune has used to educate viewers as to why they can’t view Tribune’s programming on DISH. DISH accuses Tribune of tarnishing and diluting the value of DISH’s trademarks by using words like “dishgusting” and “dishturbing” to describe DISH’s conduct. So, from the outset, it’s clear that DISH’s suit is a very serious, credible attempt to enforce its rights and is totally worth a court’s time (and absolutely should not have been filed in Comic Sans font).

    DISH is also outraged that Tribune would suggest that DISH customers who are frustrated by their inability to receive Tribune programming consider switching to another service provider. According to DISH, urging customers to switch service providers causes real harm because, when customers do switch, DISH cannot get them back. Given how sensitive the company appears to be about dishparagement, someone should alert DISH that it just admitted that customers who try another service provider are a bit like Taylor Swift – they are never, ever, ever getting back together with DISH.

    Besides, isn’t trying to get customers to choose your service offerings instead of your competitors’ sort of the whole point of advertising? DISH itself uses advertising to try to convince customers of other service providers – including DirecTV, Comcast, Time Warner Cable, Charter and Verizon – to switch to DISH. The complaint seems dishingenuous, at best.

    But it’s not just that customers may leave. DISH is also extremely frustrated that customers call DISH to complain, or get more information. DISH is clearly dishappointed at the prospect of having to spend more time talking to dishgruntled customers who are frustrated by the dishruption in their service.

    DISH’s super serious, thoughtful complaint that you definitely should not take lightly or make fun of in any way also accuses Tribune of making dishceptive claims by asserting that customers gave DISH the lowest rating for value in a 2015 customer service survey. According to DISH, it didn’t really finish last for value in that survey; rather, the company finished tied for last. In effect, DISH is claiming that Tribune is off base because even though DISH received the lowest rating, it shared that honor with other companies. Put differently, DISH’s lawsuit is premised in part on the notion that, while its customers think DISH provides terrible value, they don’t think it provides uniquely terrible value. It’s more a run of the mill terrible value. This is such an important dishtinction that DISH adds in a footnote that the company again finished tied for last for value in a 2016 survey. Just so everyone knows this wasn’t an anomaly.

    At bottom, of course, this suit is nothing more than a dishtraction. DISH’s subscribers currently can’t access programming they value through DISH because DISH would rather pay below-market rates for programming. That’s what this dishpute boils down to. If the company really wanted to provide a dishincentive for customers to leave, it might consider engineering fewer service dishruptions that deprive customers of their desired programming.

  • Patrick McFadden 1:20 pm on March 23, 2016 Permalink
    Tags: , ,   

    Time to Stick to the Facts and Find the Right Answer 

    These are exciting times. The long-anticipated broadcast television spectrum incentive auction is scheduled to begin in less than one week. Designing the reverse and forward auctions has been a herculean task, and the Federal Communications Commission (FCC) staff deserves a great deal of credit for bringing the auction to this point in a timely fashion. But, unfortunately for the Commission, once the auction is complete, its work is only half done. That’s because the end of the auction brings perhaps the most challenging phase of all: repacking many hundreds – if not more than a thousand – broadcasters to new frequencies in the television band.

    As NAB has repeatedly documented, broadcasters have serious concerns about the arduous repacking process ahead. After all, it took the better part of a decade and three extensions of time to complete the digital television (DTV) transition, which involved relocating far fewer broadcasters, did not rely on flash cuts and was buttressed by tens of millions of dollars designed to help consumers make the switch to digital. Above all, however, the greatest worry with respect to the upcoming 600 MHz transition is the Commission’s current rule requiring every broadcaster to complete its involuntary relocation within only 39 months following the auction. If the FCC is serious about repacking as many as 1,300 broadcasters, anyone who has any understanding of the broadcast industry knows that it is impossible to accomplish that task in such a short period of time.

    Fortunately, the FCC commissioners have uniformly recognized the challenges associated with the repack and have indicated in testimony before Congress that – despite the current rules – they in no way want to see any broadcaster forced off the air for reasons beyond their control.

    On the other hand, the FCC’s chairman has continued to insist that the 39-month timeline is sound. When pressed by Congress to defend that deadline given that the FCC has not done any serious analysis of what it would actually take to conduct a nationwide repack, the chairman explained that 39 months was a reasonable timeline, because, after all, even NAB had originally suggested that 30 months would be sufficient. This answer is disingenuous, and given that it has been repeated on several occasions by Commission staff, it’s time to address and bury it once and for all.

    More than three years ago, NAB submitted its initial comments in the incentive auction proceeding (then under Chairman Julius Genachowski) recommending that the FCC extend its proposed timeline for moving stations to new channels following the upcoming broadcast spectrum incentive auction. The FCC had proposed a minuscule 18-month timeline, to which NAB responded, “[t]he 18-month construction time frame proposed in the Notice for relocating stations is unrealistically short.”[1] At the time, NAB assumed, as many did, that the Commission was considering relocating “approximately 400 to 500 stations.”[2] Thus, NAB recommended that the FCC extend the deadline to 30 months, which should be enough time to “allow most stations to complete” the transition.[3] In addition, to stretch that 30 months as long as possible, NAB also proposed that “the forward auction should not be deemed completed until, or after, the time at which stations file their construction permit applications,”[4] which the Commission did not adopt. And finally, NAB made clear that “based on television stations’ experiences in the DTV transition, stations in certain metropolitan areas (such as New York City and Denver) and stations in border areas requiring international coordination could require substantially longer than even three years to construct new facilities.”[5]

    Thus, not only did NAB rely on information at the time that suggested only 400 to 500 stations would move, and seek to push back the starting point for the timetable until after construction permits were issued, we also asserted that even repacking all of 400 to 500 of stations would require more than 30 months.

    Beyond those inconvenient details, there have been three important developments in the intervening three-plus years. First, the FCC released a set of sample repacking scenarios in the summer of 2014, suggesting that the Commission is likely to repack far more stations than NAB anticipated in our 2013 comments. Instead of moving perhaps 400 stations to new channels, the FCC’s publicly released simulations suggested that the FCC could require more than 1,300 stations to relocate. Second, once the FCC released this data, NAB commissioned a study – the first of its kind – to examine each of the challenging elements that make up a nationwide repack of many hundreds or more than 1,000 stations. Third, in May 2014, the FCC surprised everyone by adopting a “death penalty” repacking rule that would require stations unable to complete their transitions within 39 months – no matter what the reason – to go off the air. The rule did not contemplate any exceptions or extensions – a rigid and inflexible deadline that no one anticipated.

    Faced with this new information, NAB re-evaluated the timeline for the upcoming broadcaster transition. It became immediately clear that 39 months would not provide sufficient time to repack the number of stations the Commission was anticipating. As a result, NAB has asked the Commission to establish aggressive, but achievable, deadlines for repacked television stations after the auction, when more is known about many stations will move, where they are located and to which channels they will be moved.

    This evolution is certainly reasonable. New facts and circumstances demand new solutions. While it is concerning that some continue to hide behind comments NAB submitted more than three years ago under different circumstances, it’s frightening that these same officials are hiding at all. The point of the repacking conversation is not to prove who is right; rather it’s to get it right. As the FCC pivots to thinking about repacking – which is now likely less than a year away – rather than being cute about past comments, it should actually engage and wrestle with the enormously complex repacking problem ahead. Only that course will give the broadcasting and wireless industries confidence that the post-auction transition will be a success.

    [1] Comments of the National Association of Broadcasters at 50, GN Docket No. 12-268 (Jan. 25, 2013).

    [2] Id. at 50.

    [3] Id. (emphasis added).

    [4] Id.

    [5] Id. (emphasis added).

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