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News Archive: November 2013

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11/27/13 - HD Radio Gets Trolled [link to this story]

HD Radio finds itself under attack in the courts from an unlikely agitator: the patent troll.

What is a patent troll? In a nutshell, they are scumbag bottom-feeders in the land of intellectual property law. Patent troll companies have no real business; they buy up existing patents and then launch campaigns of lawsuits against others that are using "their" technology, claiming that the defendants have violated "their" intellectual property rights.

The idea is to intimidate defendants into making quick settlements, avoiding a potentially costly lawsuit. Even though their claims often have no legal merit—or the patent itself is so vague as to be difficult to define—companies targeted by patent trolls will often settle just to get the nuisance out of their hair. While this might be tactically acceptable, it sets a terrible strategic legal precedent, as it gives a patent troll more courage to continue and expand their campaigns.

Legal scholars have estimated that patent trolls raked in some $29 billion from their nefarious activities in 2011. That same year, WBEZ's This American Life produced an excellent episode that breaks down patent trolls and their modus operandi. The top five patent trolls in the country have collectively sued several thousand companies large and small over the last five years.

In the case of HD Radio, earlier this month a Delaware-based patent troll named Wyncomm, LLC, representing its "subsidiary," Delaware Radio Technologies (for all intents and purposes, both are shells established for the purposes of patent-trolling), sued several broadcasters using HD Radio. The primary patent at issue was initially awarded to AT&T in 1996 and covers "side channel communications in simultaneous voice and data transmission." The patent itself vaguely refers to telephony and wireless data services.

Broadcasters are just the latest in a long line of targets for Wyncomm et al.: earlier this year the troll sued several computer and electronics manufacturers, including Apple, alleging infringement of the same patent. Wyncomm upped the ante tin the spring by going after a larger set of targets, focusing more on the wireless phone market, including France Telecom, HTC, LG, Motorola, NEC, Nokia, and Panasonic, among many others.

Then just this week, Wyncomm et al. added automobile manufacturers who've adopted HD Radio to its growing list of defendants. In total, more than 100 companies are in the sights of Wyncomm in the HD case.

Interestingly, these trolls have not targeted HD Radio's actual proprietor, iBiquity Digital Corporation, in any of these lawsuits. If HD Radio is iBiquity's baby, why not just go straight to the primary patent violator? The answer lies in the practices of patent trolls: play the odds and sue as many folks as possible, in hopes that some will pay out—multiple settlements stand to make more money than one. Had iBiquity actually been in violation of Wyncomm's patent, the company could have conceivably been on the hook in a big way—but the fact that iBiquity dodged this bullet is telling about the actual merits of the case.

However, there are some delicious ironies to all of this, for iBiquity itself is subverting patent law to keep its technology perpetually proprietary. Although the HD Radio system is covered by several patents, and these will expire in 20 years' time (or less), a crucial component of the system—the algorithm used to encode and decode HD Radio audio itself—has gone undocumented. Look at the National Radio Systems Committee's standards-documents for HD Radio and you will find no normative or informative references to this codec (dubbed HDC). Effectively, HDC is a black box that cannot be pierced by any means.

This creates a conundrum best described by Jonathan Hardis, a physicist at the National Institute of Standards and Technology and long-time HD Radio watcher who fought a lonely battle during the system's formative policy-years, trying to warn the FCC and the public about the intellectual property distortions of iBiquity. He recently summarized the dilemma in a very effective way:

[Patenting technologies] is not a problem, provided that the patent owner has agreed to license the patents on "reasonable and non-discriminatory terms." iBiquity has so agreed. Another flavor [of intellectual property] is called "trade secrets." This is where the problem lies, as [HDC] is protected as a trade secret. Unlike patents, trade secrets don't expire. . . .

Being granted a right to operate a tollbooth in perpetuity (the economists would say, being able to "extract rents" forever) is inherently unreasonable. The FCC should not have allowed it, and is completely unprecedented as best as I can tell. Never before has the FCC allowed a broadcaster on the public airwaves to use secret code (except for supplemental subscription services). Even worse, the record indicates that the FCC hasn't even thought about the issue in this context.

Any threat to the adoptive attractiveness of HD Radio, especially as it relates to broadcasters and consumer electronics manufacturers, is an existential threat to the technology. For the good of HD's future, anyone targeted by Wyncomm et al. should vigorously dispute this trolling, lest it chill the already cold reception HD has among these constituencies critical to its success.

But if settlements start happening, that's the other irony: a parasite on iBiquity's system stands to make more money off of it than iBiquity itself has.

11/19/13 - Radio's Digital Dilemma On the Road [link to this story]

Been a busy month so far: I started out in San Francisco at the Union for Democratic Communications annual conference, where I got to give a preview of my new book and its gory details. It was well-received, especially among policy scholars who hunger for some good old-fashioned muckraking.

Then I was in Australia last week for the Community Broadcasting Association of Australia's annual conference. I was the Saturday keynote, and compared to Australia's digital transition, the U.S. looks positively retarded. The talk itself was recorded, but no word on when it will be online.

A trade publication printed a short story about my talk, which makes me come across as much harsher on HD Radio than I really am. So to any of those who wish to tar me with the hater-brush, let me be clear: I believe in the future of radio broadcasting. I even believe that HD Radio may still provide an important component of radio's digital transition—but it's abundantly clear that the system has some fundamental detriments which, exacerbated by a regulatory regime wholly enamored with money over science, threatens to marginalize radio as we've known it without some sort of radical rethink.

I don't know just what that rethink might be, but I firmly believe that the longer HD's malaise continues, the harder it will be for radio as we've known it to find a firm place in our convergent modern media environment. I'm not out to throw stones, but identify problems and seek solutions. The first step to addressing any problem, however, is admitting there is one, and I do believe I've proven that beyond a reasonable doubt.

To that end, I'll be in Washington, D.C. later this week speaking about the research that went into Radio's Digital Dilemma, and how historiographers more generally can find useful purchase in the present in ways that can constructively affect the future. If we wait too long to study the past, then it becomes an archival exercise, which helps nobody but historians.

I've also developed some interesting industry contacts who are surprisingly open-minded about my research and also seek to constructively change the status quo. So I'm heading to the National Association of Broadcasters' annual convention in Las Vegas next April to meet with them and see where potential points of common ground may be found. I've also tendered a request to be a part of any formalized discussion the NAB may be hosting on radio's digital transition, but I don't hold out much hope that there's open-mindedness to be found within the NAB itself.

Radio's Digital Dilemma is now available for pre-order directly from Routledge (use the code JRK96 at checkout for a 20% discount) or from Amazon. The hardcover is obscenely overpriced, and yes, this pisses me off to no end. There will also be a companion e-book version, which I'm hoping will be more sanely figured. If enough copies of the first run are sold, a paperback version will follow, and that may actually be rationally-priced.

In the last month, I've developed a lot of respect for what touring artists go through. And this is all before the book itself is even out. Here's to a fruitful 2014: if you're interested in learning more or having me around to tell the story of radio's troubled digital transition, just drop a line.

11/5/13 - AM Revitalization Initiative Unleashed: All-Digital Transition On the Table [link to this story]

And sooner than expected: the FCC will soon open a comment window for a plethora of proposals to assist beleaguered broadcasters. Paul Riismandel at Radio Survivor has a decent breakdown of the agency's primary suggestions, and also notes that there's "nothing on the all-digital question." If only this were true.

Just because the all-digital idea is not sharply delineated in the FCC's Notice of Proposed Rulemaking doesn't mean the agency's not interested in it. Policy studies necessitate close reading. For example, the agency notes its permissiveness with all-digital AM-HD experimentation as one of several "discrete changes" it's made over the years "designed to further enhance the AM service" (p. 5).

Furthermore, the FCC acknowledges that an all-digital transition doesn't fit the bill as a "concrete" proposal "that can be implemented expeditiously"; rather, it is a "complex" idea that "would require additional comment, research, and analysis. We therefore encourage parties to submit comments in this docket for the purpose of advancing...other specific proposals to revitalize the AM service," of which an all-digital transition is explicitly mentioned (p. 20).

That's all the green-light action that HD Radio proponents need to start the regulatory campaign toward an all-digital transition.

Such behavior actually fits the policymaking trajectory that got HD this far. The 1990s were a decade of furtive development for the system, as two primary developers struggled to make the coexistence of analog and digital radio signals actually work. They spent a lot of their time not on research and development, but on jockeying with each other for the position of "frontrunner" in the digital radio space.

In 1998, one of them (USA Digital Radio, of which iBiquity Digital Corporation is a direct progeny) filed a Petition for Rulemaking with the FCC hoping it would declare its technology the formal digital radio standard for the United States. Even though neither technology actually worked as its developers claimed at the time, the FCC issued a Notice of Proposed Rulemaking based on the petition, and from that the HD Radio system was ultimately born and sanctioned for rollout, half-baked as it was.

A tired quote about the doomed repetition of history comes to mind here, but perhaps things might turn out differently. I take a (microscopic) smidgen of home from freshly-installed FCC Chairman Tom Wheeler's first official blog post, in which he emphasizes the necessity of taking risks and not being afraid to fail at them:

The first book I wrote was about leadership lessons from the Civil War. The first chapter of that book is entitled "Dare to Fail." It is a philosophy that has been at the heart of the venture capital business from which I come; the majority of a VC's investments don't work out as intended, but without taking those risks there can be no big rewards. The industries with which we work are always taking reasonable risks; I hope we won't shy away from a similar approach....We cannot sit around and wait for come up with ideas and alternatives.

Given Wheeler's long history as Top Shill for the cable and wireless phone industries, his actions must speak louder than his words—but it does suggest that there may be the possibility of having a legitimate debate on the future of digital radio. The next three months (or so) will tell the tale.