Julius Genachowski on Wednesday made yet another call for Congress to speedily allow incentive auctions to free up badly needed spectrum for the wireless industry.

But while the content in the FCC chairman’s speech was familiar, his vehicle for delivering it was different. He’s given many speeches reading from a tablet, as he did in Vegas, but this was the first time he had done so on an Android model — a Samsung Galaxy 8.9.

“I’ve only done them on the iPad,” Genachowski said. “On my smartphones I’ve tried to make it a practice to switch them up.”

So how was it?

“It was all good,” Genachowski said, showing off his remarks on the Galaxy tab. His trusty iPad was nearby, which he used to dash off a quick email before our interview. “It was a seamless experience.”

As for the content of his talk, Genachowski focused on several points that are near and dear to his heart — first, that Congress enable the auctions quickly, and second, that it leave the FCC the option of keeping some of the spectrum freed up for unlicensed purposes.

“It would be a very serious mistake to pass incentive legislation and prohibit the FCC from using some spectrum for unlicensed (uses),” he said, echoing comments he made on a Silicon Valley swing late last year.

Such uses, he said, allow innovation that could provide for even more efficient spectrum usage than limiting it only to licensed purposes.

“We may see innovations there that lead to more efficient use,” he said. “To me, it’s a no-brainer.”

Genachowski said that allowing those with unused spectrum to auction it off could allow for the recovery of 100MHz of very high quality spectrum near the 700MHz band used for today’s 4G services.

“The work doesn’t end with incentive auctions, but incentive auctions are a sure way to provide very significant relief to spectrum.”

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“Leave the FCC the flexibility to make sure there is efficient use of spectrum, including unlicensed spectrum, so that we can adjust to the needs of the future,” Genachowski told AllThingsD in an interview. Genachowski was in town for an event announcing winners of a contest to develop community apps that make use of government data.

The House of Representatives has passed a bill that would include something the chairman badly wants: incentive auctions that would free up badly needed spectrum for wireless broadband. However, the bill also includes a provision that would limit the agency’s authority to manage unlicensed spectrum bands, something Genachowski opposes.

At one point during the event, held at the offices of Andreessen Horowitz, I asked for the password to the venture firm’s guest network.

“That’s why we need Wi-Fi,” Genachowski said, a reference to the fact that Wi-Fi is possible only because the FCC has been able to preserve and make available unlicensed bands of spectrum.

In a follow-up interview, he talked about the need for such spectrum.

“It takes spectrum that doesn’t lend itself for the same use (as that licensed to carriers and others) and says ‘Let’s put it out there as a platform for innovaton,’ not knowing exactly what will happen,” Genachowski said. “When the FCC first did this, no one knew that it would lead to Wi-Fi.”

Unlicensed spectrum has been used, he said, to help meet the challenges of lots of groups, including those faced by the wireless carriers that have licensed spectrum, Genachowski said.

“Wi-Fi itself has gone from something that was resisted by the licensed carriers to something that is now embraced because it is such an important part of addressing demands on spectrum. Wi-Fi offload is a critical part of the system.”

In a statement Friday, AT&T said commissioners won’t be able to vote a proposal announced Tuesday from FCC Chairman Julius Genachowski that the $39 billion merger be sent before an administrative law judge. The carrier announced it had withdrawn its FCC application in the early hours of the Thanksgiving holiday in the U.S.

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As reported in March around the time the merger was first proposed, T-Mobile, a division of Deutsche Telekom, stands to gain about $3 billion in break-up fees should the deal fail to close. AT&T would also give T-Mobile certain wireless spectrum that’s not needed for the rollout of its next-generation wireless network.

While AT&T has said it plans to fight the action in court, the sudden move by the Justice Department and the fact that the Federal Communications Commission — which would also have to sign off on the deal — has yet to weigh in on it, make it extremely unlikely that the merger will ever be consummated, says James Ratcliffe, a telecom analyst with Barclays Capital in a note to clients today. He points out that, historically, when they challenge mergers in court, the agencies tend to win about 60 percent of the time.

“We believe that the deal is by no means dead, as the DOJ has stated that the ‘door is open’ for AT&T to propose remedies, but the fact that the DOJ took this strong step this early in the process makes the probability of completion much lower,” he wrote. “We now view the probability of success at 35-40%, down from our previous 75% view.”

One of the primary arguments in the complaint (the original filing is embedded below via Scribd) focuses on government and enterprise customers. Where critics of the deal would charge that the only notable competitors to AT&T and T-Mobile are Sprint and Verizon Wireless, AT&T management would rebut that Leap and MetroPCS are also players. The DOJ complaint discounts that argument, especially with regard to business and government customers. Leap and MetroPCS are really regional players, the DOJ says, and so corporations and government agencies with many offices around the country can only realistically consider national carriers, the number of which would be reduced to three were the deal approved.

“T-Mobile makes its presence felt competing head to head with AT&T and other carriers for a number of accounts, winning business in some cases and often pushing prices lower when it does not,” the DOJ’s complaint reads. “The merger’s elimination of T-Mobile as an aggressive competitor would likely result in fewer choices and higher prices for enterprise and government customers.”

And while the DOJ has drawn its legal line in the sand, it’s not the only agency yet to be heard from. The Federal Communications Commission would also have to sign off on the deal for it to be approved. Its chairman, Julius Genachowski, issued a carefully worded statement that gives a strong hint that it will ultimately oppose the merger. “Competition is an essential component of the FCC’s statutory public interest analysis, and although our process is not complete, the record before this agency also raises serious concerns about the impact of the proposed transaction on competition,” Genachowski said.

In a conference call with reporters today, Harold Feld, the legal director of PublicKnowledge, a telecom advocacy group that has opposed the merger, speculated that the FCC will likely send the matter to an administrative law hearing, which he called “the kiss of death” for mergers. “By the time that procedure would be finished, T-Mobile would have taken its breakup fee and gone and built an entirely new network,” he said.

So on what legal basis might AT&T and T-Mobile fight the case? The DOJ is using some new market analysis techniques that haven’t been used in antitrust cases before, says Barclays’s Ratcliffe. “Traditionally, the DOJ has used regional impact analysis to study the impact of wireless mergers, and it does so here again,” he writes. “In addition, however, the DOJ is also viewing the market as being national, a comparatively new approach, which might be more open to challenge in the courts.”

AT&T CEO Randall Stephenson has promised to fight it, and continued to argue that the deal will bring real benefits to spectrum management nationwide, and create jobs. Deutsche Telekom said it will join the fight, too.

Justice-ATT-TMobile-Complaint

The deal with Industry Canada calls for the sharing of commercial spectrum in the 700 megahertz band as well as some spectrum in the 800 MHz band, while the deal with Mexico’s Secretariat of Communications and Transportation is focused solely on the 700 MHz band.

“These arrangements will unleash investment and benefit consumers near the borders by enabling the rollout of 4G wireless broadband service and advanced systems for critical public safety and emergency response communications,” FCC Chairman Julius Genachowski said in a statement.

“I have concluded that this acquisition, if permitted to proceed, would likely cause substantial harm to competition and consumers, would be contrary to antitrust law and not in the public interest, and therefore should be blocked by your agencies,” U.S. Sen. Herb Kohl (D., Wis.), said in a letter to Attorney General Eric Holder and FCC Chairman Julius Genachowski.

Sen. Kohl, who heads a Senate subcommittee that examines antitrust issues, held a hearing on the proposed merger in May. Executives for AT&T and T-Mobile appeared before the subcommittee and defended the deal as good for consumers.

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FCC Chairman Julius Genachowski said Monday the agency would begin considering a proposal to “explore new ways to empower consumers and protect Americans against cramming and mystery fees.”

Cramming is a term used to describe a phone company’s inclusion of an unauthorized or misleading charge in monthly bills. FCC officials offered an example of a Saint Louis woman who was charged for long-distance service for more than two years even though she hadn’t signed up for it.

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Unfortunately for Sprint, it’s not Dan Hesse. Rather, it is Renata Hesse, a veteran antitrust lawyer–and no relation to the Sprint CEO. Hesse is a former DOJ antitrust lawyer who worked on the government’s opposition to the Oracle-PeopleSoft deal, among other transactions. Hesse is currently a partner with Wilson, Sonsini, Goodrich and Rosati.

“Renata’s wealth of legal expertise and experience is a welcome addition to the review team and I am thrilled that she will soon be joining us,” FCC Chairman Julius Genachowski said in a statement. “Her leadership will help ensure that our review of this important transaction is fair, thorough and efficient.”

Both the FCC and Justice Department must sign off on the deal. Sprint, headed by the other Hesse, has vowed to fight the deal.

Meted out by France’s Commission nationale de l’informatique et des libertés, or CNIL, the sanction is the agency’s highest ever and the first penalty levied against Google for data collection practices that have drawn complaints from dozens of countries.

According to the CNIL, though Google pledged to erase all the private data it collected, it “has not refrained from using the data identifying Wi-Fi access points of individuals without their knowledge.” Worse, the company continues to collect data on Wi-Fi access points via smartphones accessing its Latitude service, without clearly disclosing that to Latitude users. And, as it has done in other countries, Google refused to grant access to software used to harvest and store the information or an interview with the “rogue engineer” it claims is responsible for the whole debacle.

Google, of course, continues to play the penitent. “As we have said before, we are profoundly sorry for having mistakenly collected payload data from unencrypted WiFi networks,” Google’s Global Privacy Counsel Peter Fleischer said in yet another variation of the same statement the company has been issuing for nearly a year now.

PREVIOUSLY

• Lawmakers Would Like a Word With Google’s “Rogue” WiSpy Engineer
• Connecticut Won’t Press for Google WiSpy Data, Looks to Settle
• Well, Hell, If I Knew All I Had to Do Was Seize the Hard Drives…
• Look, Sergey, a Christmas Card From the Connecticut AG! Wait…
• Google Street View Privacy Debacle Far From Over
• FTC Closes Google Street View Probe
• Google CEO Apologizes for Street View Schmidtstorm
• Google CEO’s Advice to the Street-View Shy: The Video
• Schmidt: Don’t Like Google Street View Photographing Your House? Then Move.
• Mr. Schmidt, There’s an Inspector Lestrade on Line One
• State AGs to Probe Google’s “Deeply Disturbing Invasion” of Wi-Fi Data
• No Harm, Big Foul: Google Intercepted Passwords and Email Extracts
• Germany Questions Google’s Data “Mistake”
• Google Street View Cars Collected Wi-Fi User Data for Three Years

Republicans are targeting the “net neutrality” rules, which would bar Internet providers from blocking or slowing Internet traffic and services, as well as new regulations in such areas as health care and the environment, as unnecessary and overly burdensome on industry.

“Why would you put the government in charge of the Internet?” asked Rep. Fred Upton (R., Mich.), who chairs the House Energy and Commerce Committee.

FCC Chairman Julius Genachowski, a Democrat, defended the new rules during the hearing, saying the FCC “did the right thing” and that it is “pro-job and pro-investment” for the U.S. economy.

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“Google has played an enormous role in advancing the Internet as we know it today, but Americans have a right to know the relative facts of its Wi-Fi data collection activity known to U.S. consumers, regardless of whether the FCC finds a technical violation of the law,” the letter reads, noting that a handful of probes by state attorneys general has yet to yield access to the consumer data Google harvested or an interview with the “rogue engineer” the company claims is responsible for collecting and storing it.

“Nine months after Google first admitted to collecting this data, we still don’t have answers as to how this privacy breach was allowed to take place and how many Americans were affected, let alone a credible assurance that it will not happen again,” it continues. “The lack of progress in this investigation is concerning, particularly in light of the progress made by authorities in other countries.”

And that’s a valid, and troubling, point. South Korea recently analyzed the harvested consumer data; why can’t the United States do the same? And how is it possible that the FTC concluded its investigation into this matter without talking to that rogue engineer?

“A serious inquiry into this matter requires a hearing from the engineer that Google claims is responsible for the data collecting activity. Google’s Street View Vehicles captured and stored over 600 gigabytes of data. It is difficult to understand how just one individual could have been responsible for a data collection operation of this scale.”

PREVIOUSLY

• Connecticut Won’t Press for Google WiSpy Data, Looks to Settle
• Well, Hell, If I Knew All I Had to Do Was Seize the Hard Drives…
• Look, Sergey, a Christmas Card From the Connecticut AG! Wait…
• Google Street View Privacy Debacle Far From Over
• FTC Closes Google Street View Probe
• Google CEO Apologizes for Street View Schmidtstorm
• Google CEO’s Advice to the Street-View Shy: The Video
• Schmidt: Don’t Like Google Street View Photographing Your House? Then Move.
• Mr. Schmidt, There’s an Inspector Lestrade on Line One
• State AGs to Probe Google’s “Deeply Disturbing Invasion” of Wi-Fi Data
• No Harm, Big Foul: Google Intercepted Passwords and Email Extracts
• Germany Questions Google’s Data “Mistake”
• Google Street View Cars Collected Wi-Fi User Data for Three Years

After reminding the nation that “South Korean homes now have greater Internet access than we do,” he went on to call for a national wireless broadband network.

Within the next five years, we’ll make it possible for businesses to deploy the next generation of high-speed wireless coverage to 98 percent of all Americans. This isn’t just about–(applause)–this isn’t about faster Internet or fewer dropped calls. It’s about connecting every part of America to the digital age. It’s about a rural community in Iowa or Alabama where farmers and small business owners will be able to sell their products all over the world. It’s about a firefighter who can download the design of a burning building onto a handheld device; a student who can take classes with a digital textbook; or a patient who can have face-to-face video chats with her doctor.

It’s the latest attempt by Obama to try to solve the difficult problem of broadband penetration in America. In many places, most of them rural areas with low population density, cable and telco companies can’t make back the investments required to build out network infrastructure, and so they don’t build at all. As I’ve said here before, for Americans in those places, the options for participating in the digital culture the rest of us take for granted are few, and it often means the difference between participating and not in so much of the daily discourse that occurs online.

Part of the answer lies in taking back some radio spectrum that’s used for other things. In June, Obama signed a memorandum calling for the freeing up of certain radio frequency spectrum in the 500 MHz range. This is a block of spectrum largely owned by TV broadcasters for free over-the-air TV transmission. Broadcasters have been under pressure–and so far they are resisting–to voluntarily give those licenses up so that the spectrum can be re-auctioned off.

Julius Genachowski, chairman of the Federal Communications Commission, essentially telegraphed that this is going to be the commission’s major policy priority in comments at the Consumer Electronics Show in Las Vegas earlier this month. He has said he’d like to offer broadcasters incentives to give up their spectrum, but this would require a new law passed by Congress, and those in Congress have their own ideas about how this should be done. You can expect a lot of debate about this in Washington this year, but probably not a lot of progress.

In a 4-1 vote–Commissioner Michael Copps dissented–the FCC is allowing the deal to go through, but with some conditions, most of them relating to the online video business. One key requirement that’s not happening: Comcast isn’t being required to divest itself of its equity in the Web video site Hulu, which a few lawmakers had called for. It will however be required to give up its role in managing Hulu. NBC U jointly owns it with the Walt Disney Co. and News Corp. (which also owns this Web site).

In a statement, FCC Chairman Julius Genachowski said the conditions imposed “include carefully considered steps to ensure that competition drives innovation in the emerging online video marketplace.”

Among those conditions, the FCC will also require Comcast to offer Web versions of its TV shows to what it calls “bona fide online distributors” under the same terms it offers them to cable and satellite providers. This would indicate that shows appearing on Hulu will probably end up on Apple TV or YouTube or elsewhere, meaning, as MediaMemo’s Peter Kafka suggested last month that Hulu’s exclusive rights to NBC content are over.

Comcast will also be required to offer broadband to some 2.5 million low-income households for less than $10 a month, and will be required to extend its network to reach 400,000 homes, build out service in six rural communities and provide free video and high-speed Internet access to 600 schools and libraries in underserved areas. This will allow Genachowski to claim some kind of victory on one of the Obama administration’s signature technology policy issues, which is spreading the availability of broadband.

In a dissenting statement, Copps called the merger “a transaction like no other that has come before this commission–ever,” and said “It confers too much power in one company’s hands.”

Harold Feld, legal director at Public Knowledge, a Washington, D.C.-based public interested group, said the organization was largely satisfied with the conditions except for one. It would have liked to see Comcast required to sell broadband service on a wholesale basis. “As longtime supporters of wholesale access, we believe such a condition would go a long way to help consumers by increasing broadband competition,” he said.

So what does that mean for Hulu, which has already locked up exclusive rights to NBC’s Web video?

A couple of possible answers: Perhaps Federal Communications Commission head Julius Genachowski is trying to put a fork in Hulu. Or maybe the conditions he wants to place on the merger are so toothless that they don’t really count as conditions at all.

Background: Each of Hulu’s three partners/owners–GE’s NBC, News Corp.’s Fox and Disney’s ABC–has agreed to mutual exclusivity pacts. If you want to watch one of their shows for free online, you can see them on the networks’ own sites, or via Hulu–either on the main site itself, or via other sites that are taking Hulu’s feed. (News Corp. also owns this Web site.)

But one of the primary conditions Genachowski wants to place on FCC approval for the Comcast-NBC deal is that Web competitors will get access to NBC’s shows, according to the New York Times and The Wall Street Journal. Here’s the WSJ:

Comcast would be required to offer NBC Universal programming to any online video provider that has reached a similar deal for content with some of NBC’s competitors, such as Walt Disney Co. or Fox Television, a division of News Corp.

That’s a bit vague, so we won’t really know what Genachowski intends until he goes public with his proposed rules. But there are basically two ways to interpret what the Journal is reporting here. Either:

• The FCC wants to make sure that NBC doesn’t prevent Hulu from syndicating its content out to third-party sites, as it’s already doing with Yahoo, AOL and…Comcast. If that’s all Genachowski wants, that’s no big deal, and not really  a restriction at all. Because Hulu’s business plan is predicated on wide distribution. Or….
• The FCC is telling NBC that it has to offer its shows directly to other Web sites. That’s potentially devastating news for Hulu. If, say, Yahoo can license “The Office” directly from NBC, it may not want to bother cutting a deal with the joint venture site. And to be clear: The overwhelming majority of Hulu’s traffic comes from people watching shows from its big three partners.

So which is it? The FCC held a farcical press conference yesterday where it wouldn’t answer any specific questions about the deal. But it would be nice if it could clear this one up soon.