Broadband Law Advisor Blog : Broadband Lawyers & Attorneys : Davis Wright Tremaine Law Firm : National Broadband Plan Adoption & Infrastructure Updates

The FCC’s May 20, 2010 open meeting is expected to bring the next agency order on pole attachments, accompanied by a further notice of proposed rulemaking asking for additional comments about how the regulations should be revised.  The FCC will have its choice of subjects to tackle when it comes to pole attachments, as there are many proposed changes before the Commission in this area spanning thousands of pages of industry input. 

As we originally advised in 2007, the FCC’s original NPRM on pole attachments asked various questions, including: 

(1) If and how the different rate formulas for cable and telecom attachments should be changed,

(2) Whether ILECs should have the same rights as other communications providers under Section 224,

(3) What new rules for the attachment of wireless antennas to poles should be adopted, and

(4) Should regulations be adopted to enforce stricter application and make-ready timing requirements for communications providers wishing to attach equipment to poles. 

In August of 2009, a group of electric utilities filed a declaratory ruling petition asking the FCC to impose the higher telecom rate on all pole attachments used to provide VoIP. The FCC solicited comments on the petitions and again received thorough feedback. This was followed by months of regular lobbying concerning both the declaratory ruling petition and the NPRM. 

As discussed in our analysis of the Broadband Plan, to promote the national goals of expanding broadband deployment and adoption, the FCC has since indicated preferences for lowering the telecom rate to bring it closer to the cable rate, and for quicker pole access for communications providers, contrary to the proposals of pole owners.  Given this, the May 20 order and FNPRM will likely follow suit, although which of the above issues the FCC will resolve in its order and which it will push to the next round of notice and comment rulemaking remains an unanswered question. 

The Broadband Law Advisor is following these issues closely and will post updates when significant developments occur.

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The FCC has released its tentative agenda for its next open meeting to be held on May 20, 2010.  The agenda identifies five items, two of which are not directly related to the Broadband Plan -- Mobile Wireless Competition Report and Local Number Portability Report and Order.  (Note that the Wireless Report follows the FCC's last wireless competition report, released on Jan. 16, 2009, which relied primarily on 2007 data.  It is not clear from the tentative agenda whether this latest edition will be based on 2008 or more recent data.)

The remaining three broadband-related items are:

(1) WCS-SDARS Report and Order (enabling broadband use in WCS band)

(2) E-Rate NPRM (initiating reforms to E-Rate program)

(3) Pole Attachments Order and FNPRM (ensuring "nondiscriminatory, just, and reasonable access to utility poles")

Like its tentative agenda for the April 21 meeting, the FCC has not provided much more detail than this.  In the meantime, you can refer to DWT's Advisory on the Broadband Plan for further discussion of these upcoming issues and what to expect in these proceedings.

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By Paul B. Hudson, Danielle Frappier, and Michael C. Sloan

Proposals to reform the Universal Service Fund High-Cost Program have been circulating at the Federal Communications Commission (FCC) for years. Last week, the FCC launched a proceeding to escalate high-cost reform as part of the implementation of the recently released National Broadband Plan.   (Our summary of the universal service terms of the Plan is available here.)

This new proceeding, in the form of a Notice of Inquiry and Notice of Proposed Rulemaking (NOI/NPRM) seeks comment on ways to use High-Cost Program funds to expand broadband services and shift funding away from services and areas no longer in need of support. It also seeks comment on ways to limit the growth of the funds, as well as ways to improve broadband deployment.

Although the NOI/NPRM does not make proposals for the creation of the new Connect America Fund (CAF), which is one of the centerpiece proposals of the Broadband Plan, it does offer some insight into the FCC’s thinking of what that future fund should look like.

(Continue reading)

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By Ronnie London and Brian Nixon

The Federal Communications Commission (FCC) released a Notice of Inquiry (NOI) on April 21, 2010, seeking public comment on the proposed creation of a voluntary cybersecurity certification program by which participating communications service providers would be certified—by the FCC or a third party, as determined by the FCC—as adhering to a set of cybersecurity objectives and/or practices.

The program begins the process of effectuating a recommendation in the National Broadband Plan, issued by the FCC last month, by seeking to increase the security of the nation’s broadband infrastructure, promote a culture of more vigilant cybersecurity, and offer end-users more complete information about their communication service providers’ cybersecurity practices.

Comments on the NOI will be due 60 days from the date of its publication in the Federal Register, which generally occurs several days or weeks after FCC release of an action such as this.

(Continue reading)

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By Paul Glist and Paul B. Hudson

The FCC launched two related proceedings on set-top box issues at its April 21, 2010, open meeting.

One is a Notice of Inquiry (NOI) posing extensive long-term questions about the possibility of requiring all multichannel video programming distributors (MVPDs) to provide adaptors by Dec. 31, 2012, that translate their programming into standard video feeds that may be consumed by a variety of retail devices.

The other is a Notice of Proposed Rulemaking (NPRM) to address perceived short-term CableCARD issues. This NPRM could affect the availability of high-definition (HD) digital terminal adaptors (DTAs), the use of switched digital tuning adaptors used to expand the tuning range of “one-way” retail devices, digital outputs from HD set-top boxes, the installation process and pricing for CableCARDs, and the certification of “one-way” retail devices. 

(Continue reading.)

The NOI and the NPRM, as well as the Commissioners' statements (Genachowski, Copps,McDowell, Clyburn, Baker), are now available.

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The FCC's April 21 open meeting was dominated by efforts to implement the National Broadband Plan.  Not surprisingly, the Commissioners voted unanimously to adopt all six agenda items that had already been announced on several occassions prior to today's meeting - USF Reform (NOI and NPRM, see also earlier blog post on these proceedings); Mobile Voice and Data Roaming (Order on Recon and FNPRM); Cable Gateways and CableCARD (NOI and FNPRM, see also the recently released DWT Advisory); Broadband Network Survivability (NOI); and Cyber Security Certification (NOI).  Except for the only Order issued today (which eliminated the home exclusion to wireless roaming), the proceedings adopted by the Commissioners initiate (and in some cases, like CableCARD, re-ignite) proceedings to further develop the record in anticipation of future amendments and new rules.  Not explicitly laid out by the presenters during the meeting, however, but alluded to by the Commissioners, were the two big elephants in the room -- Title II and the ramifications of the Comcast case.  In particular, Commissioners Copps and McDowell acknowledged that questions regarding the FCC's jurisdiction over broadband would likely be a central focus in the FNPRM to consider extending roaming obligations to mobile broadband services.  Indeed, that FNPRM specifically seeks comment on these issues, including the "significance, if any" of the Comcast case in this - and effectively all other - broadband proceedings. 

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At its open meeting today, the FCC announced a first set of proceedings to begin implementation of its National Broadband Plan. The first item was a Notice of Inquiry and Notice of Proposed Rulemaking (“NOI/NPRM”) to begin shifting universal service high cost funding to broadband services and away from telephone subsidies where they are no longer needed. Staff noted that USF reform will be a “marathon, not a sprint,” echoing the Plan’s statement that high cost changes will be phased in over time.

While the text of the NOI/NPRM is not yet available (the FCC has only issued a News Release as of the time of this posting), staff at today’s meeting outlined three principal issues teed up for comment. First, the FCC is asking for comment on what a new model for high-cost support should look like, if it chooses to employ one. Support today is based upon models, which some believe cause support to be poorly targeted (too much money in areas where it is not needed, not enough in others). The staff clearly indicated that they are only gathering information and are not signaling a preference against more targeted, market-based approaches such as reverse auctions. Second, it seeks comment on how it might jump-start new broadband support before the completion of long-term reform. Some parties are likely to urge for the FCC to fund project-basis awards in unserved areas, something like a round 3 of the broadband stimulus programs. Third, it seeks comment on ways to control growth of the USF, such as capping funding at 2010 levels (and using the “savings” to fund broadband), transitioning rate-of-return carriers to incentive-based regulation and eliminating high cost funding for competitive providers (which are mostly wireless carriers) over five years. Although each of these three items are posed as interim steps, the debate has the potential to shape the framework for long-term reform. 

UPDATE: The FCC has just released the NOI and NPRM on its website.  As noted in the NOI/NPRM, comments and reply comments will be due 60 and 90 days, respectively, from the date of publication on the Federal Register.  The Commissioners' statements are also available as well.  (Genachowski, Copps, McDowell, Clyburn, Baker)

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The Commission has released its agenda for the April 21 open meeting (10:30 am, Room TW-C305).  The agenda mirrors the FCC's earlier tentative agenda released on March 31. 

According to the agenda, the Commission will consider six issues related to the Broadband Plan: (1) NOI and NPRM on USF reform, (2) Order on Reconsidation and FNPRM on mobile roaming arrangements for voice and broadband mobile services, (3) NOI on the availability of smart video devices for MVPD networks (ie, network gateways), (4) FNPRM on changes to the CableCARD rules, (5) NOI on broadband network survivability and security, and (6) NOI on establishing a cybersecurity certification program.  For more analyses on these and other broadband issues, please read our DWT Advisory on the Broadband Plan.

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In case you missed it, the Senate Commerce Committee's hearing with Chairman Genchowski on the Broadband Plan is now available on the Commerce Committee's website.  The FCC has also released the Chairman's prepared statement for the hearing.

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Although the DC Circuit's recent decision in Comcast v. FCC has raised significant questions concerning the Commission's jurisdiction over Internet access (read the DWT Advisory on the case), the Commission has moved forward with releasing a comprehensive schedule that proposes over 60 proceedings, workshops and other efforts to implement the recommendations in the Broadband Plan. The schedule anticipates the release of 16 reports and orders by the end of 2010 alonw, nine of which are expected to be released in the second quarter, in addition to numerous other proposed NPRMs, NOIs and FNPRMs. Some notable issues to be considered this year include pole attachments, TV white spaces, hearing aid compatibility and a clarification on interconnection. The FCC also intends to initiate an NPRM on CableCARD and an NOI on smart video devices in the second quarter of 2010, as well as NPRMs on USF, texting, intercarrier compensation and smart video devices by the end of 2010.

The 2010 schedule and the more comprehensive agenda which discusses the 60+ proposed action items, are available on the FCC’s broadband.gov website.  However, like the FCC's March 31 tentative agenda,  this comprehensive agenda still only offers teasers of what to expect in the upcoming proceedings, so there is not much more to report than what is available. (You can, in the meantime, refer to DWT’s Advisory on the Broadband Plan for more detailed analyses of the issues.)

The Chairman also took this opportunity to respond to reports that the DC Circuit's decision could derail the FCC’s broadband agenda. The Chairman is quoted as saying that the court’s decision “does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals.”  That, of course, remains to be seen -- as we concluded in our DWT Advisory, the court’s ruling likely sets the stage for further rulemakings, court cases and federal legislation to address, and clarify, the FCC’s regulatory role in high-speed Internet access, including a potential showdown on placing the Internet under Title II regulation.

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By Christopher W. Savage and Robert G. Scott, Jr.

On April 6, 2010, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Federal Communications Commission (FCC) exceeded its authority when it sought to regulate Comcast’s network management practices for its high-speed Internet access service. The court vacated the FCC’s Aug. 1, 2008, ruling that Comcast’s former practice of using various techniques to moderate the amount of bandwidth used by peer-to-peer services such as BitTorrent violated the FCC’s 2005 “Internet Policy Statement.” (Continue reading.)

Immediately following the court's decision, the FCC extended its reply comment deadline in its Open Internet Proceeding (i.e., Net Neutrality) to April 26, 2010. The original date for reply comments was April 8.
The DC Circuit's opinion (Comcast Corp. v. Federal Communications Commission, No. 08-1291 (D.C. Cir. April 6, 2010)) is available here.

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