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

The FCC has released its tentative agenda for its June 17, 2010 open meeting.  Unlike recent agendas for April and May, this one is written such that the June meeting will be dedicated to one, and only one, issue - the reclassification of broadband access service as a telecommunications service.*  According to the agenda, the Commission intends to adopt a Notice of Inquiry to "begin an open, public process to consider possible legal frameworks for broadband Internet services...."  In particular, the agenda highlights three questions from the proposed NOI, paraphrased as follows:

1. Whether the information service classification for broadband Internet service remains legally sound and adequate for the Commission to perform responsibly;

2. The legal and practical consequences of classifying broadband Internet service as a telecommunications service subject to all the provisions of Title II; and

3. The Commission's "third way" approach to regulating broadband Internet service (or at least the transmission components of such service).

We previously blogged about this issue already when the Chairman first announced his "third way" approach to reclassification (see an opinion on the "third way" approach here), so we won't get into it again now.  But rest assured, June 17 should make for an interesting and eventful day at the FCC.

* Of course, the Commission may include additional agenda items as the June 17 date nears, but this issue is obviously big enough to keep everyone busy for the entire meeting.

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While the FCC ponders the legality of implementing the recommendations of the National Broadband Plan (see our prior discussions of the Chairman's "Third Way" approach to regulating the Internet, here and here), it appears that Congress is first to move forward in addressing broadband accessibility issues for the disabled, including closed captioning for Internet-delivered video and reinstating the FCC's video description rules.  (According to the FCC's broadband action agenda items schedule, the Commission was not planning to address hearing aid compatibility until Q3 of this year, and Internet video and device accessibility until Q4.)

Tomorrow, the Senate Subcommittee on Communications, Technology and the Internet (of the Senate Committee on Commerce, Science & Technology) will hold a hearing on “Innovation and Inclusion: The Americans with Disabilities Act at 20.” This hearing will likely include discussion of the recently introduced Senate bill entitled “Equal Access to 21st Century Communications Act” (S.3304, Pryor-Kerry-Conrad-Dorgan, May 4, 2010) which would expand the accessibility of “advanced communications” to people with hearing and visual disabilities.

As we noted in our initial analysis of accessibility under the National Broadband Plan, many federal laws have been enacted to require greater access to telecommunications by persons with disabilities, but they often lag technological development. For example, Section 255 of the Act requires telecommunications products and services to be accessible to the disabled but does not apply to voice over Internet protocol (VoIP) or other IP-based equipment and services. Video programs delivered by Internet are under no requirement to be captioned, even if they were previously shown with captions on TV. Many 911 emergency call centers also cannot accept calls from people who communicate in video or via pagers. Application of existing disability laws to Web sites that blend Internet with “bricks and mortar” retailing has caused confusion and spawned litigation.

In the past, Representative Edward Markey (D-Mass.) has regularly introduced bills to extend the reach of accessibility legislation. His most recent bill on this issue was “The Twenty-first Century Communications and Video Accessibility Act of 2009,” (H.R. 3101, June 26, 2009). In making its recommendations, the National Broadband Plan often cited to, and thus relied on, the recommendations made in the Markey bill, including extending hearing aid compatibility requirements to "advanced services" (including non-interconnected VoIP and text messaging) and to manufacturers of devices for such services, as well as reinstating the FCC's "video description rules." The more recent Pryor bill is similar to the Markey bill in both scope and intent.

Both bills' efforts to reinstate the FCC's video description rules are particularly noteworthy. "Video description" is defined as the "insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue." (47 C.F.R. 79.3(a)(3).) In other words, when there is no dialogue, audio narration would be inserted to describe what is happening onscreen, so that people with visual disabilities could follow the events unfolding. The original video description rules were adopted by the FCC in 2000 (15 FCC Rcd. 15,230) and would have required, among other things, that (1) affiliates of the top 4 broadcasters at the time (NBC, ABC, CBS, and Fox) must provide 50 hours of video description per calendar quarter either during prime time or children's programming, and (2) MVPDs with over 50,000 subscribers must provide 50 hours of video description on each channel on which they carry one of the top five national nonbroadcast networks. The MPAA immediately challenged the rules on the ground that the FCC had exceeded its authority by promulgating rules that implicated program content. The D.C. Circuit agreed, and struck down the video description rules. In doing so, the court clarified that the FCC "acted without delegated authority from Congress."

In light of the D.C. Circuit's clarification, the Pryor and Markey bills would expressly delegate such authority to the FCC, thus avoiding any challenges based on the FCC's delegated authority. Specifically, the law, if passed, would require the FCC to "republish" and "refresh" the original rules to apply to "video programming that is first published or exhibited after the date of enactment" of such new law. In addition, both bills would authorize the FCC to require closed captioning on certain video programming distributed over the Internet, and to impose (or inquire into imposing) accessibility requirements on navigation devices/set top boxes, programming guides, DVRs, and remote controls. With express Congressional authority, challenges to resultant FCC actions would have to find some other Constitutional ground for reversal.

The Senate hearing is scheduled for May 26 at 2:30 pm in the Russell Senate Office Building Room 253.
 

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By James F. Ireland, James W. Tomlinson, and Christopher A. Fedeli

At its May 20, 2010, Open Meeting, the Federal Communications Commission (FCC) adopted an Order and Further Notice of Proposed Rulemaking (Order/FNPRM) to ensure nondiscriminatory, just, and reasonable rates, terms and conditions for access to investor-owned utility poles in the 30 states where such attachments are regulated by the FCC.

In its 94-page Order/FNPRM, the FCC adopts two new requirements relating to pole access and construction practices and proposes a host of new rules governing rates, terms and conditions of pole access to encourage broadband deployment and competition consistent with recommendations made in the National Broadband Plan (“Plan”).

(Continue reading)

* DWT ADVISORIES provide in-depth and comprehensive analyses of some of the most important communications issues today.  These Advisories are posted to the Broadband Law Advisor without e-mail notification.  However, if you would like to receive DWT ADVISORIES directly in your inbox, sign up on the ADVISORY subscription page.

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Today the FCC voted to adopt an Order and Further Notice of Proposed Rulemaking (FNPRM) on changes to its pole attachment rules, adding yet another chapter to the FCC's pole attachment saga.  Described by FCC Chairman Genachowski as "the blood and guts of broadband deployment," the pole attachment item was notable both for the level of technical detail it addresses, and for the decision to request additional comments on topics that have previously been briefed at considerable length.

What follows is a high level summary that consists mostly of information announced at today's open meeting and the accompanying press release.  The full Order and FNPRM have now been released, and DWT will post a summary of that text shortly.

In the meantime, highlights from today's Order include:

• The Commission holding that the process of make-ready utility pole construction may not be subject to untimely delay under the statute, and

• The Commission addressing the practice of "opposite side construction," also known as boxing the pole, where communications providers place attachments on both sides of a utility pole.

In addition, highlights from the FNPRM include:

• The FCC proposing to establish timelines for access for both cable wires and wireless antenna facilities, drawing on experiences of the New York and Vermont PSCs,

• The FCC specifically asking for detailed comments on the use of outside contractors to expedite make-ready construction,

• The Commission proposing to change the formal FCC complaint resolution process to eliminate disincentives for private parties to seek FCC resolution and to expand the FCC’s authority to act,

• The FCC asking for comments on various rate proposals, including a new FCC devised formula that would amend the telecom rate by providing a rate range consisting of an “upper bound” rate (the existing telecom formula), and a “lower bound” rate that would exclude pole capital costs (but not operational costs) from the rate calculation. Under this proposal, a telecom attacher would pay the higher of the “lower bound telecom rate” or the current cable rate, which the FCC expects would result in payment of the cable rate in most cases, and

• Rather than proposing specific pole rent rules for ILECs, the FCC requesting additional comments on several issues including whether ILECs are legally entitled to regulated pole rates, and whether the benefits ILECs enjoy under joint use contracts with electric utilities justify higher pole rents compared to cable and telecommunications attachers.

Among the many other items that appear to be addressed in the FNPRM are: “sign and sue,” unauthorized attachments, and additional remedies to resolve pole attachment complaints.

Chairman Genachowski strongly encouraged all parties to be active participants in the upcoming rulemaking proceeding addressing the FNPRM issues.  (Comment dates will be set upon publication of the FNPRM in the Federal Register, we will let you know when that happens.)  Commissioner Baker also asked interested parties to especially address: (1) how the FCC’s proposals to harmonize different pole attachment rates squares with the statutory framework; and (2) how various pole access proposals accommodate electrical safety issues.

Stay tuned for a more detailed summary of today’s Pole Attachment Order and FNPRM.

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At its May 20 open meeting today, the Commission continued its efforts to implement the recommendations of the Broadband Plan by unanimously adopting three more broadband-related proceedings to accompany the handful of proceedings adopted in April.

As expected, the Commission adopted a Notice of Proposed Rulemaking to initiate reforms to the Schools and Libraries Universal Service Support Mechanism (E-Rate) program to make broadband more accessible in schools and libraries and to cut red tape.  In addition to the anticipated items to streamline the E-Rate application process and index the e-rate cap to inflation, the FCC has decided to propose new rules to expand funding to wireless broadband connectivity for portable devices for students, as well as expanding funding for internal connections (possibly by eliminating the complex "2-in-5 year" rule). These items were originally slated for consideration in 1Q 2010. This proceeding follows the Commission's earlier adoption of its USF High-Cost NOI and NPRM in April.  (For further information, please contact Danielle Frappier.)

The Commission also adopted an Order and Further Notice of Proposed Rulemaking to ensure nondiscriminatory, just and reasonable access to utility poles by broadband providers, an issue that Commissioner Clyburn referred to as the "nuts and bolts" of broadband access. The Order resolves certain utility pole access issues, while the FNPRM asks for additional comments on pole attachment rates, FCC enforcement, and access timeframes.  (For further information, please contact or Jim Tomlinson.)

Also adopted today was a Report and Order (News Release only, the actual R&O has not yet been released) enabling robust mobile broadband use of 25 MHz of spectrum in the 2.3 GHz wireless communications service (WCS) band. (The Commission also adopted a not-yet-released Second Report and Order implementing rules for terrestrial repeaters to provide greater certainty for both satellite radio and WCS licensees.) (For more information, please contact Brendan Holland.)

(The other two proceedings considered at the open meeting were the Local Number Portability Report and Order and the 14th edition of the Mobile Wireless Competition Report.)

UPDATE: The FCC has now released the Report and Order on WCS wireless broadband and the Second Report and Order on terrestrial repeaters.

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The FCC has released the final agenda for its May 20 open meeting, which will begin at 10:30 am in Room TW-C305.

As indicated in its tentative agenda released late last month, the Commission will consider five new agenda items, including three broadband-related items concerning mobile broadband use in the WCS band, reforms to the E-Rate program to make broadband more accessible to schools and libraries, and implementation of Broadband Plan recommendations regarding pole attachments (which we had commented on earlier).

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Comment dates for the last of the FCC's National Broadband Plan agenda items from its April 21 open meeting have been set.  The "Smart Video Device" NOI, which seeks comment on the potential retail market for "smart set-top video devices" that would be compatible with all MVPD (including cable, satellite and telco) video services, was published in the Federal Register today.  Initial comments are due by July 13, 2010, and reply comments are due by August 12, 2010. 

Also published in today's Federal Register was the FNPRM that seeks to establish new "interim" CableCARD rules until the FCC's gateway regime emerges.  Comments for this FNPRM are due by June 14, 2010, and reply comments are due by June 28, 2010.

For further insight into the issues raised in these two proceedings, please read our DWT Advisory on the matter, or contact Brian Hurh for more information.

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As part of the FCC's implementation of the National Broadband Plan, the FCC adopted at its April 21 open meeting an NOI/NPRM to launch its renewed effort to reform the universal service high cost fund.  This proceeding has now been published in the Federal Register, thus starting the comment period for both the NOI and the NPRM.  Initial comments are due by July 12, 2010, with replies due August 11, 2010.

For additional information about the USF reform proceeding, please contact Danielle Frappier.

(This leaves the Cable Gateway NOI/CableCARD FNPRM proceeding as the last item from the April 21 open meeting that has yet to be published in the Federal Register. We will post the comment dates for this proceeding as soon as they are available.) 

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This morning, two of the FCC’s Broadband Plan proceedings that were adopted at the April 21 open meeting were published in the Federal Register, thus starting the clock for comments and replies. The first item published is the Commission’s Notice of Inquiry regarding its proposed “Cyber Security Certification Program," which we discussed in detail last month. Comments for this proceeding are due by July 12, 2010, with replies due by September 8, 2010.  

The second item that was published concerns the Notice of Inquiry entitled “Effects on Broadband Communications Networks of Damage to or Failure of Network Equipment or Severe Overload.”   Comments in this proceeding are due by June 25, 2010, with replies due by July 26, 2010.

There are still a few items yet to be published from the April 21 open meeting -- USF Reform NOI/NPRM and the Cable Gateway NOI/CableCARD FNPRM -- but we expect these to appear in the Federal Register in the near future.  We will post their comment dates here as soon as they are available.

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In publicizing his decision to reclassify broadband as a Title II telecommunications service, FCC Chairman Genachowski took some pains to try to reassure the investment community that he was not making any sudden moves that should discourage broadband investment. But despite his efforts to try to limit the impact of his move, he has crossed a Rubicon that should never have been crossed. Broadband internet was never regulated under the Title II rules that grew up for the monopoly “Ma Bell” era, and for good reason.  It was because the Internet was allowed to grow in an unregulated competitive market that attracted massive investment by competing providers and delivered the astonishing broadband throughput that enables all the cool Internet business models. No student of technology should feel comforted when the government decides that technological innovation has gone far enough, and we can stop now and write it into rule. No student of regulatory history should be sanguine about promises to limit the scope of government once it asserts control. Every student of government should be alarmed when the government picks favorites, asserting control over the selected few parties who built the “core” of the Internet to today’s capabilities, to benefit its favored parties at the “edge,” claiming all the while that it is not touching the Internet or free speech, when it is in fact doing both. It has been only weeks since we and Google collectively scolded China for centralized government controls which are anathema to the Internet—and now we are inviting centralized government controls when it favors Google. We should be troubled, too, by some of the reasoning offered. It conspicuously avoids inconvenient facts, such as broadband never having been subject to “Ma Bell” regulation. It seeks to write for itself a new Title of the Communications Act that Congress never adopted, ignoring a Congressional mandate to leave the Internet “unfettered” by regulation. While the Commission will be inviting further comment, matters this profound should not be left to an unelected agency, no matter how bright and well-meaning. If we are to reconstruct communications and media law, we should be turning to Congress. And if we are straying towards a world in which the government decides which speech is free and which is not, we should be turning to the Bill of Rights to remind us of why the government is supposed to limit its reach in the first place.

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Following reports yesterday that Chairman Genachowski was now prepared to assert FCC jurisdiction over the Internet, the FCC released the Chairman's statement proposing a "third way" to regulate the Internet.  As anticipated by earlier reports, the Chairman's statement reveals that the FCC would not seek to impose Title II on Internet services in its entirety.  Rather, the FCC would only recognize the "transmission component of broadband service" as a "telecommunications service."  In addition, the FCC would only apply a "handful" of Title II provisions to Internet networks, specifically, Sections 201 (just and reasonable service and charges), 202 (non-discrimination), 208 (complaint procedures), 222 (customer privacy), 254 (universal service) and 255 (disability access).  In doing so, the Commission would forbear from applying many other sections of the Communications Act that, according to the Chairman, are "unnecessary and inappropriate for broadband access service." 

The "third way" approach is the FCC's attempt to find some middle ground between the status quo (Title I ancillary jurisdiction) and full reclassification of Internet access service as a telecommunications service under Title II.  Indeed, the Chairman admitted that "the extreme alternatives to this light-touch approach are unacceptable," and that "FCC policies should not include regulating Internet content, constraining reasonable network management practices of broadband providers, or stifling new business models or managed services that are pro-consumer and foster innovation and competition."

The statement follows reports that Representative Waxman and Senator Rockefeller had delivered a letter to the Chairman yesterday indicating their support for the FCC's regulatory oversight of the Internet, which may have helped sway the Chairman to adopt this middle ground.  The statement also follows a letter from Commissioner McDowell to Rep. Waxman providing a brief history of the regulatory classification of Internet access services.  In that letter, Commissioner McDowell emphasized that, following the Supreme Court's Brand X decision upholding the FCC's classification of cable modem service as an information service, the Commission "without dissent" consistently classified broadband services as information services in the context of wireline, powerline, and wireless.

UPDATE: The FCC has also released an accompanying statement from the FCC's General Counsel Austin Schlick that provides the "legal thinking" behind the "third way" approach. 

In addition, Commissioner Copps released his statement on the proposal, in which he admitted that he "would have preferred plain and simple Title II reclassification through a declaratory ruling and limited, targeted forbearance."

UPDATE: Commissioners McDowell and Baker have released their joint statement, finding the Chairman's proposal "disappointing" and one that "deeply concerns" them.  Notably, the two Commissioners caution that the proposal will be shot down by the courts as exceeding the FCC's authority absent a "specific mandate from Congress."  If that is the case, the Waxman and Rockefeller letter to the Chairman would suggest that some members of Congress would then try to give the FCC that mandate.

UPDATE: Commissioner Clyburn's statement is now available on the FCC's website, which, not surprisingly, supports the Chairman's proposal.

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Last week, the FCC's Order on Reconsideration and FNPRM regarding Mobile Voice and Data Roaming (formally adopted at the Commission's April 21 open meeting) were published in the Federal Register.  As a result, the clock has started for comments to the FNPRM, with initial comments due June 14 and reply comments due July 12.  (As for the Order on Reconsideration, which eliminates the home roaming exclusion for voice and related services (currently codified at 47 C.F.R. 20.12), the rule amendment goes into effect on May 28, 2010.)

As of this posting, the FCC's other broadband proceedings from the April 21 open meeting (i.e., USF Reform, Cable Gateway/CableCARD, Broadband Survivability, and Cyber Security Certification) have not been published, and thus, the comment dates have not been set yet.  We will, of course, let you know when that happens.

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