700Mhz: Devil In the Details
Carterfone principles probably not enforceable
After the FCC released their 700Mhz broadband spectrum auction rules
(pdf) a few weeks ago, there was ample applause that the Commission at least met Google's demands
half-way. People assumed that while the FCC wasn't going to force true open access, they'd at least force auction winners to offer unlocked devices and unimpeded access to content.
We assumed there were loopholes
that would allow AT&T and Verizon lawyers to wiggle around the conditions should they win the spectrum, or else those operators wouldn't have been quite so enthusiastic about the rules. Attorney, ICANN board member and law professor Susan Crawford has had some time to digest the rules and says that yes, the devil is in the details
"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."
Therefore, if AT&T won the spectrum and wanted to prevent the use of Skype on a new network built using the spectrum, they could simply argue vaguely that the software causes undue strain on their network (just like they do now). Crawford also notes that if an operator plays their cards right, it is possible to win the spectrum in smaller chunks with no conditions applied
. In other words, Martin's rules are intentionally toothless.