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

This morning the Federal Communications Commission held its monthly open meeting, this time to discuss the Commission's proposed reclassification efforts for broadband services.  In a three-to-two vote (Commissioners McDowell and Baker dissented), the Notice of Inquiry was adopted, and will seek comment on three ways to regulate broadband - under the Commission's Title I ancillary authority; under full Title II authority; or under the Chairman's "Third Way" approach which would impose limited Title II authority using the Commission's forbearance authority.  The NOI will also solicit the public for any other suggestions on how to regulate broadband.

It was announced during the meeting that comments to the NOI will be due by July 15, 2010, and reply comments due by August 12, 2010.

At this time, the NOI has not yet been released, but the FCC has released a News Release and statements from the Commissioners (but not the Chairman).  When the NOI is released, we will provide a more in-depth analysis.

UPDATE: The Notice of Inquiry has been released, and is available on the FCC's website with all the Commissioners' statements.

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By Chris Savage and Paul Hudson.

The Federal Communications Commission (FCC) today adopted its widely anticipated Notice of Inquiry in response to the D.C. Circuit’s ruling in the Comcast case, which held the FCC had not justified its assertion of “ancillary” authority over broadband Internet access network management practices. (Our alert regarding the Comcast ruling is available here). The Notice seeks comment on three ways to re-establish authority over broadband, including Chairman Julius Genachowski’s “Third Way” proposal to treat “wired broadband Internet connectivity” as a telecommunications service under Title II of the Communications Act, then forbear from applying some of the specific obligations that would arise from that status. (Our Broadband Law Advisor piece on the Chairman’s proposal is available here, and an opinion on the Chairman’s proposal is available here).

(Continue reading)

For more information, please contact Chris Savage or Paul Hudson.

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On Tuesday, the Commission's Omnibus Broadband Initiative (OBI) released a technical paper addressing the options for reallocating a portion of the spectrum currently used for broadcast television.  Entitled "Spectrum Analysis: Options for Broadcast Spectrum", the technical paper presents the analyses supporting the reallocation proposal outlined in the National Broadband Plan and addresses options for repurposing spectrum from the broadcast TV bands to mobile broadband use.  The technical paper sets forth the analytical methodologies used by the OBI, the various proposals for consolidating or repacking the spectrum, and the mechanisms for reallocating the returned spectrum.  The paper also addresses the potential impact of the spectrum reallocation. 

In addition to the release of its technical paper, the Commission has also scheduled the first of four working sessions addressing the repacking and reallocation of the television spectrum.  The first session will be held at the FCC on Friday, June 25, 2010 from 3:00 to 6:00 PM.  The Commission's working sessions are intended to address the technical challenges of the reallocation proposal.  According to the Advisory released by the FCC, the Commission has invited "a number of broadcast industry engineers and technical experts in related fields" to participate in the sessions. On the agenda for the June 25th meeting are such topics as: The Cellularization of Broadcast Architecture, Methodologies for Repacking the TV Band, Advancements in Compression Technology, and Improvements in VHF Reception.  It's not clear who has been invited to attend or what the goal of the meeting is with just 30 minutes allocated to each of these four huge topics.  The meeting is open to the public and available online at http://reboot.fcc.gov/live/ for those interested in following the proceedings.

Based on these recent actions, it is clear that the Commission is not waiting for a spectrum inventory to assess usage and efficiencies of all spectrum, but rather is moving ahead with all deliberate speed on its TV spectrum reallocation proposal.  According to the time table set forth in the National Broadband Plan, the Commission hopes to see any related rule making proceedings concluded by 2011, an auction of reallocated spectrum in 2012, and all reallocated spectrum cleared by 2015.   For more information please contact Brendan Holland.

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This is a reminder that the FCC will hold its next open meeting on Thursday, June 17.  As we noted earlier, and as confirmed by the Commission's recent Meeting Agenda released this past Friday, this open meeting is expected to be quite entertaining, as it is dedicated to discussing a Notice of Inquiry to initiate an "open, public process to consider possible legal frameworks for broadband Internet services in order to promote innovation and investment, protect and empower consumers, and bring the benefits of broadband to all Americans" -- in other words, reclassification of broadband services as telecommunications services to implement the Commission's National Broadband Plan.

If you recall, last May, Chairman Genachowski released a statement indicating that, rather than reclassifying broadband services as telecommunications broadly, he would pursue a "third way approach" whereby only the "transmission components of broadband service" would be deemed telecommunications subject to select portions of Title II of the Communications Act.  This controversial approach will certainly be discussed at the June 17 meeting, in addition to any other proposals that the NOI may present.

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The FCC’s Notice of Proposed Rulemaking for reforming the Schools and Libraries (e-rate) program was published in the Federal Register this morning, starting the clock for comments and replies.  This proceeding was adopted at the Commission’s May 20 open meeting as part of its effort to implement the recommendations of the National Broadband Plan.  Comments are due on July 9, and replies are due on July 26.

An FNPRM proposing changes to the e-rate eligible services list was also published in the Federal Register this morning, which seeks comment on whether certain services such as web hosting, separately-priced firewall, and anti-virus and anti-spam software should not be eligible for funding under the E-Rate program. Comments on this proceeding are likewise due on July 9 with replies due on July 26.

For further information, please contact Danielle Frappier.

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The FCC recently announced that it is seeking applications for membership on its newly created FCC-Native Nations Broadband Task Force. The Task Force was among the National Broadband Plan’s key recommendations for increasing broadband deployment and adoption on Tribal lands (see our detailed summary of the Plans' recommendations for Tribal lands here).

The Task Force will be comprised of representatives from Native American governments and FCC staff. The FCC plans to rely on the Task Force to help develop a policy for ensuring Native American governments’ concerns are addressed in broadband-related proceedings, to recommend ways to better promote broadband deployment and adoption on Tribal lands, and to help coordinate broadband policies across the Federal government.

The FCC specified that members of the Task Force should plan to serve for two years and that applicants must disclose any connections they may have to entities regulated by the FCC. Applications are due by July 15th.

For further information, please contact Maria Browne or Rob Morgan.

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