The Oh-So-Political Spectrum

And the winner is.... Well, it depends on whom you ask.

The Federal Communications Commission voted 4-1 today to allocate more than one-third of the soon-to-be-auctioned 700Mhz wireless spectrum for "open access," a move designed to give consumers more flexibility in choosing wireless phones and services.

But its decision, which will allow consumers to use any device to connect to the new network, garnered a lukewarm response from consumer groups. They, along with web giant Google, said the ruling does not do enough to open up wireless networks to increased competition.

The federal government hopes to raise as much as $15 billion next January by auctioning off the 700Mhz band spectrum made available as television stations change over to digital broadcasting.

The rules require the winner of "the large, 22-megahertz Upper 700 MHz C Block" to "allow customers, device manufacturers, third-party application developers, and others to use any device or application of their choice on their networks in this band," the F.C.C. said in a statement.

While that provision dealt a partial victory to Google, which had lobbied vigorously on behalf of "open access," the F.C.C. did not go all the way in endorsing the web search giant's proposals. The commission failed to implement a provision which would have required the winning bidder of the spectrum to sell network access on the wholesale market.

The battle over the auction rules is latest skirmish between the incumbent telecoms such as Verizon and AT&T on one side and Google, Earthlink and others who want to break into the Internet delivery business on the other.

They have sought to protect their ability to dictate which devices and software can be used on their wireless networks. Internet firms such as Google have argued that the telecoms have what amounts to an uncompetitive oligopoly over wireless service, resulting in less choice and higher prices for consumers.

Consumer groups cite Apple's IPhone, which is only available on AT&T's wireless network, as an example of how F.C.C. rules stifle consumer choice.

Commissioner Michael Copps, along with fellow Democratic commissioner Jonathan Adelstein, expressed disappointment that the wholesale provision was not included, but joined F.C.C. chairman Kevin Martin in voting for the new rules.

Copps said the commission missed "an important opportunity to bring a robust and badly needed third broadband pipe into American homes," a sentiment echoed by Google, which called the ruling "real, if incomplete, progress."

Google said in a statement that it would "need time to carefully study the actual text of the F.C.C.'s rules, due out in a few weeks, before we can make any definitive decisions about our possible participation in the auction."

Consumer groups and "open access" advocates responded to the ruling ambivalently.

Wi-Fi expert Glenn Fleischman called the decision "business as usual, folks, just a little more open." He said the commission's failure to require the winning bidder to resell access on the wholesale market "means the winning bidder gets to set the prices it wants."

Gigi Sohn, president of Public Knowledge, a D.C.-based digital rights group, called the ruling "a split decision for consumers because the commission had the potential to do so much more."

She said that while consumers should applaud the provisions giving them more flexibility to choose wireless providers and services, the commission missed an opportunity to open up the wireless market to more competition by failing to approve the wholesale provision.

"While Chairman Martin and some of the other commissioners spoke about the potential to help consumers by creating more competition for high-speed Internet services," Sohn said, "at the end of the day they did nothing about it."

by Sam Gustin