Intellectual Property Law

Google Accuses Verizon of Planning to Dodge 700 MHz Open Access Rules

By Cynthia Brumfield

(Update: Reaction from Verizon Wireless at end of post.)

On Friday, Google urged the FCC to block Verizon Wireless' $4.7 bil. successful bid for the C Block band of spectrum in the recently completed 700 MHz auction unless Verizon is forced to agree that open access rules apply to handsets it provides its own customers. Specifically, Google claims that Verizon Wireless has no intention of abiding by the open access rules governing the C block spectrum for devices it gives to its own customers and that the FCC should condition Verizon's grant upon a clear commitment that Verizon will not exclude these handsets from the requirement.

In a petition filed at the Commission (PDF) -- technically a petition to deny Verizon Wireless' winning bid for the spectrum -- Google said

Verizon has taken the public position that it may exclude its handsets from the open access condition. Verizon believes it may force customers who want to access the open platform using a device not purchased from Verizon to go through ?Door No. 1,? while allowing customers who obtain their device from Verizon access through ?Door No. 2.? As Google previously made clear, Verizon?s position would completely reverse the meaning of the rule such that the open access condition would apply to none of Verizon?s customers, and thereby render the condition a nullity. Because this ?two-door? position espoused by Verizon is contrary to the plain meaning of the rule, as well as the Commission?s public interest findings and policy objectives set forth in the 700 MHz Second R&O, it must be rejected.

Google all but accuses Verizon of planning to ignore the portion of the C Block open access requirements that say that C Block licensees "may not disable features on handsets it provides to customers." Google says that Verizon has never strayed from its initial position that open access requirements do not apply to handsets that it gives its own customers.

Indeed, when the FCC announced the open access requirements, Verizon asked the the U.S. Court of Appeals for the D.C. Circuit to find those conditions unlawful and only withdrew its appeal after that court denied Verizon's request for an expedited review and after the wireless industry's trade association, CTIA, filed a similar appeal, Google says.

Instead of interpreting the rule to mean "Any Applications, Any Devices," Verizon thinks it means "Any Applications, Except on Verizon Devices," Google claims. To make sure Verizon upholds the open access conditions, Google asks the FCC to adopt a condition that

affirmatively rejects Verizon?s stated position regarding its open access obligations, and requires Verizon to affirmatively acknowledge, and agree to comply with, the Any Apps, Any Devices obligation as a condition to the grant of the licenses.

Google was the main proponent of the open access rules and was a bidder for the C block spectrum.

Update: I heard from a Verizon Wireless spokesperson regarding this petition and here's the company's reaction: "Google's filing has no legal standing."

Full post as published by IP Democracy on May 05, 2008 (boomark / email).