Google and Frontline smack Verizon over US wireless auction (again)

Court gives a helping hand

Score one for the anti-Verizons in the ongoing battle for the 700-MHz band, a slice of US wireless spectrum set to be auctioned off by the Federal Communications Commission (FCC) in mid-January.

On September 27, more than two weeks after it brought legal action against the FCC over rules that would allow consumers to attach any device and any application to the band, Verizon asked a federal court for an ultra-quick review of the action. The mega-telco wants its complaints straightened out tout de suite - before the auction arrives.

But last night, the US Court of Appeals for the District of Columbia Circuit denied Verizon's request for a fast track. It was one of those short but sweet decisions: "Upon consideration of the emergency motion for expedited review, the oppositions thereto, and the reply, it is ORDERED that the motion to expedite be denied."

The decision is a fillip for Frontline Wireless, the well-connected startup lobbying for open access to the 700-MHz band, and you can bet Google is pleased as well. The Mountain View, CA outfit is fighting just as hard to loosen Verizon's grip on American airwaves.

The Verizon agenda

With its 700-MHz auction rules, laid down on August 10, the FCC applied an open access requirement to a 22MHz portion of the band. As it stands, the winning bidder will have no choice but to open the 700-MHz "C Block" to any device and any application.

Of course, Verizon prefers the current situation, where it has complete control over its wireless bandwidth, and early last month, the communications behemoth filed a "petition for review" with the Court of Appeals, insisting that the FCC remove the open access requirement. According to the court action, the FCC's decision was "arbitrary, capricious, unsupported by substantial evidence, and otherwise contrary to law".

Judging from earlier comments filed with the FCC, Verizon is arguing that an open access requirement would inhibit the "free speech" of the band's winning bidder. Clearly, Verizon wants to be that winning bidder - as long as the open access requirement is removed.

How did it take the decision from the Court of Appeals? The company refused to give us a comment.

Frontline fights back

Meanwhile, Google and Frontline are anxious to keep that open access requirement right where it is. Four days after Verizon asked the court for an expedited review of its petition, Frontline told the court to reject the request.

"Verizon has failed to demonstrate why a single hypothetical outcome for a single potentially affected party is so exceptional that it constitutes irreparable harm that strongly compels expedited review," read a court filing from Frontline, whose executive staff includes former FCC chairman Reed Hundt. In other words, the company thinks Verizon is trying to rig the auction in its favor.

Frontline has even gone so far as to suggest that the FCC should bar Verizon from the 700-MHz auction. In a recent filing with the commission, the startup said that the telco violated FCC rules after its September 17 meeting with current chairman Kevin Martin.

Following such a meeting, Verizon is required to publicly disclose the details, and Frontline said it failed to do so, claiming that the telco's "ex parte" letter about the get-together could "only be described as opaque."

"That letter provided just a one-sentence description of the September 17, 2007 meeting between high-level Verizon executives and the Chairman, his staff and the Wireless Bureau Chief, and was so deliberately obfuscatory that it did not bother to even identify the issues discussed," Frontline complained in its own filing.

And Google too

Google made much the same argument with its own FCC filing earlier this week - and then some. After Verizon filed its original letter about the September 17 meeting, the commission asked the telco to file a more detailed letter - and the company complied. But the search giant is still peeved that Verizon is trying to bend the FCC's ear even as its suing the commission in federal court.

"Given that Verizon already has appealed the order in the U.S. Court of Appeals for the D.C. Circuit, however, it may not also at the same time seek FCC reconsideration," read a filing from Google. "Under these circumstances, the Commission should declare that Verizon may not sidestep the mandatory procedures of the Communications Act and the Commission’s rules by denying the public the right to understand and respond to its reconsideration positions – or enjoying two bites at the proverbial apple."

Yes, this all sounds very catty. But the future of the US internet access hangs in the balance. If the open access requirement remains in place, Google may even bid for the wireless band, as it reiterated yesterday in a post to its official public policy blog.

"We are still carefully analyzing whether and how we might participate in the upcoming auction," wrote Richard Whitt, Google's Washington media and telecom counsel. "However, if we do end up bidding and ultimately win the spectrum in question, we would ensure that consumers have the right to decide which devices and applications they want to use on our network. We would also encourage third party software applications - even those that compete directly with our own services - on the theory that users deserve the right to pick and choose the programs they want to use online."

It's a theory we agree with. ®