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

At last month’s Broadband Acceleration Initiative workshop, outgoing FCC Chairman Genachowski announced that the FCC would soon release a notice launching an inquiry into pole attachment costs as part of its effort to further reduce barriers to broadband build-out. This announcement followed on the heels of the Chairman’s issuance of the Gigabit Cities Challenge, which urges broadband providers and state and municipal community leaders to establish ultra-fast, affordable broadband connections in at least one community in every state by 2015.

Pole attachment delays and costs routinely have been cited by broadband providers as barriers to swift and ubiquitous deployment of networks. The Congressionally directed National Broadband Plan released in 2010 recognized that the cost of deploying a broadband network depends significantly on the costs that service providers incur to access poles, conduits and rights of way. The FCC sought to address these concerns in its April 2011 order (affirmed by the D.C. Circuit January 2013) lowering rental rates for telecommunications attachments and imposing timeframes on pole owners for processing attachment applications.

However, recent statements by small cable operators and broadband newcomers, including broadband grant recipients and Google, Inc. – that utility pole attachment practices factor into a company’s deployment decisions – appear to have prompted the FCC to take another look at pole attachment related costs and their impact on deployment of gigabit networks. Buford Media attributed its decision to shut down four systems in Arkansas and Texas to high costs for pole attachment fees. We will keep you apprised of any developments in this area, including when the notice initiating the FCC proceeding is released.

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You would be forgiven if you thought the status of exclusive agreements for exclusive broadband cable service to “multiple dwelling units” such as condominiums and planned communities (MDUs) was settled. In 2007, the Federal Communications Commission (“FCC”) issued a ruling broadly declaring that such exclusivity agreements are “null and void,” and adopted a rule that prohibits the enforcement or execution of “any provision in a contract that grants to it the exclusive right to provide any video programming service (alone or in combination with other services) to a MDU.” We detailed the FCC’s exclusivity orders in previous posts here and here, and the court’s decision upholding the FCC on appeal here.

Despite the seemingly straight-forward application of this rule to ban exclusive MDU service, conflicts over broadband service to MDUs persist. The issue continues to surface both in negotiation of expiring agreements (where MDU management tends to demand compensation in exchange for exclusivity or simply tells the existing provider to leave and enters into a “non-exclusive” agreement with another provider) and in court disputes. At a recent FCC workshop promoting so-called gigabit networks, investors and service providers told the FCC that access to MDUs continues to be an obstacle to broadband deployment and investment.

Most recently, on April 5, 2013, in Lansdowne on the Potomac Homeowner’s Association v. OpenBand at Lansdowne, the United States Court of Appeals for the Fourth Circuit affirmed an order of the district court striking down an arrangement that gave a broadband service provider the exclusive right to provide video, voice, and Internet service to a large planned development. Exclusivity was assured through a convoluted series of entities and agreements designed to insulate the exclusive service rights from potential challenges under the FCC’s rule, which had been a proposal but not a rule when the agreements were structured.

The court concluded that the provider had “engaged in what amounts to an elaborate game of regulatory subterfuge featuring an array of procedural defenses, the use of various corporate entities to escape the definition of an OVS operator, and an artifice to evade the FCC order by structuring its exclusive arrangement using a web of sub-agreements.” The court declared the exclusivity provisions null and void as required by the FCC’s rule, and issued an injunction prohibiting their enforcement against the homeowners’ association and the homeowners themselves.

The Lansdowne case may discourage some developers and service providers from entering agreements designed to circumvent the FCC’s prohibition on exclusive service agreements. But because exclusive service is extremely profitable for the provider and affiliated developers, disputes are unlikely to disappear altogether.

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 Throughout the nation, wireless carriers attach their facilities to electric transmission towers, despite the fact that they do not have statutory rights to do so. The rights of wireless carriers to attach to electric facilities generally stems from the federal Pole Attachment Act, as amended by the Telecommunications Act of 1996 (“the Act”), codified at 47 U.S.C. § 224. While wireless carriers have rights to attach under the Act, carrier rights do not extend to transmission towers. Southern Company v. Federal Communications Commission, 293 F.3d 1338, 1343-46 (11^th Cir. 2002). This lack of rights gives transmission tower owners significant bargaining power over wireless carriers and often results in unbalanced license agreements heavily skewed in favor of the tower owner.

For example, license agreements typically subordinate the wireless attacher’s use of space on transmission facilities to the needs of the tower owner. It is not uncommon to find provisions requiring an attacher to remove or relocate its equipment upon 90 days’ notice from the tower owner when the owner needs the space for its own use or planned future uses. Removing wireless facilities in such a short time frame can severely hamper a wireless carrier’s ability to locate, secure, obtain permitting for and construct an alternative site in order to ensure continuous coverage.

Wireless carriers in New Jersey were forced into such a situation just last year when Public Service Gas and Electric Company (“PSE&G”) sent 90 day removal notices to wireless attachers along a transmission path that had been slated for replacement. PSE&G had no plans for temporary or permanent relocation of the wireless attachments on other PSE&G facilities. Given the timeframes for local zoning and permitting, the wireless carriers had no reasonable means for ensuring that coverage and service (including access to emergency services) would not be compromised. The wireless attachers were compelled to raise the issue with the New Jersey Board of Public Utilities, which in turn led to a settlement in which PSE&G agreed to cooperate with the wireless attachers to ensure wireless coverage would not be interrupted.

There is a relatively simple way for wireless attachers to ensure they are not caught off guard in such situations. In order to better anticipate a transmission tower owner’s future planned use of facilities to which they are attached, wireless carriers should monitor the planning processes of the Regional Transmission Organizations (“RTOs”). RTOs are entities approved by the Federal Energy Regulatory Commission (“FERC”) to both operate transmission networks in centrally dispatched control areas, and maintain reliability within established reliability standards. Most electric companies across the country have turned over the operational control of their electric transmission systems to RTOs. In order to ensure the transmission system will continue to meet reliability standards, the RTOs will typically engage in regional transmission planning processes to determine when transmission facilities will need to be upgraded and/or replaced. These planning processes are open to the public. Wireless attachers can and should monitor these planning processes in order to know in advance when an RTO will require transmission tower owners to replace facilities. In this way wireless attachers will be in a better position to work with tower owners in advance of receiving removal/relocation notices.

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By Randy Lowe and Michael Sloan

Many healthcare providers (HCPs) do not have access to broadband facilities that are capable of supporting bandwidth-hungry telemedicine applications – either because it is simply unavailable or too expensive. Congress recognized this problem when it created the Health Care Support component of the Universal Service Fund. In December 2012, the FCC changed the program to make it more useful to HCPs seeking to expand their telemedicine offerings. Specifically, the FCC created the Health Care Connect Fund (HCF), which aims to distribute $400 million annually to rural HCPs and their non-rural partners.

The purpose of the HCF is to expand broadband access to HCPs and to encourage the development of state and regional broadband networks for telemedicine. The HCF will support the cost of (1) broadband and other advanced services; (2) upgrading existing facilities to higher bandwidth; (3) equipment necessary to create HCP networks or use broadband services; and (4) HCP-owned infrastructures where shown to be the most cost-effective option.

The HCF will allow eligible HCPs the option of purchasing services or designing and building networks if they can demonstrate that their choice is the most cost-effective option (the option for building new networks is available only to members of a consortium). Infrastructure funding, which is capped at $150 million each year, may be used in combination with services purchased from commercial service providers. Only consortia will be permitted to receive support for new infrastructure builds. Urban HCPs will be permitted to participate in those consortia with Rural HCPs so long as the Urban HCPs are not a majority of the participants. The HCF will pay 65 percent of eligible costs, with the participating HCPs required to pick-up the remaining 35 percent. While the HCP contribution obligation is not insignificant, the FCC specifically approved a variety of creative ways for HCPs to finance their 35 percent share of the costs.

Participants in the precursor to the HCF, the Rural Healthcare Pilot Program, can seek HCF funding beginning July 1 of this year. The FCC is expected to finalize the applications for the HCF by the end of the summer and funding will begin for new participants on January 1, 2014.

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UPDATE: Rules published Sept. 23, effective November 20.  Rules now subject to legislative and industry challenges.  Read our DWT Advisory here.

On September 9, 2011, the Office of Management and Budget (OMB) signed off on the new data collection requirements of the FCC’s net neutrality order. This allows the Federal Register to publish the net neutrality regulations, which should occur within the next few weeks. The new rules will become effective 60 days after they are published. In addition, upon publication in the Federal Register, parties can appeal the rules in federal court.  Verizon had appealed the FCC’s net neutrality order to the US Court of Appeals for the DC Circuit earlier this year, well before the OMB had approved the regulations. However, in April 2011 the DC Circuit dismissed the appeal as premature. 

By way of background, the FCC adopted its net neutrality order in December of 2010 (full summary here). One of the regulations adopted in that order requires broadband service providers to disclose their network management practices to consumers. This constitutes a government-mandated data collection triggering the terms of the Paperwork Reduction Act. Under the PRA, the OMB must approve certain data collections imposed by federal agencies prior to their effectiveness. 

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Verizon just announced that it has filed a lawsuit in the federal D.C. Court of Appeals to challenge the FCC's Net Neutrality Order that was adopted during the Commission's December open meeting.  We have not yet seen the contents of the complaint, but Verizon's brief press release is available here.

For information about the FCC's Net Neutrality Order, please read our prior posts:

FCC Adopts Net Neutrality Rules; Relies on Title I Ancillary Jurisdiction

DWT ADVISORY: FCC Releases Details on Net Neutrality Rules

DWT Advisory: A Critique of the Legal Reasoning Behind the FCC's Net Neutrality Order

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UPDATE: DWT Advisory is now available!

UPDATE: FCC has released the Memorandum Opinion and Order

Today the FCC granted approval of the Comcast-NBCU transaction, with conditions and commitments, of course.   Although the order has not yet been released, according to the FCC's press release, the approval requires Comcast-NBCU to "take affirmative steps to foster competition in the video marketplace," including ensuring reasonable access to Comcast-NBCU programming and Comcast's distribution system. 

On the broadband side, the conditions require Comcast-NBCU to "guarantee bona fide online distributors the ability to obtain Comcast-NBCU programming in appropriate circumstances."  Some examples include offering content to online video distributors on the same terms and conditions as offered to traditional MVPDs; offering standalone broadband service to access online video services such that customers would not be required to purchase cable service from Comcast; and not disadvantaging rival online video distribution through Comcast's broadband service or cable set-top boxes.

Comcast-NBCU also committed to offering affordable broadband service and equipment to low income households; expand its broadband footprint to include rural communities, and provide free video and broadband service to hundreds of anchor institutions, including schools and libraries in underserved areas. 

Stay tuned for a more detailed DWT analysis of the FCC's approval.

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 On Dec. 23, 2010, the Federal Communications Commission (FCC) released its Report and Order (R&O), and the text of the net neutrality rules it adopted on Dec. 21, 2010. The rules are summarized in our prior advisory, but the R&O contains many important details and nuances. (For the full text of the order, see Report and Order).

 

Transparency

The R&O offers a detailed illustration of the wide ranging disclosure that wireline and wireless providers must provide of commercial terms, performance, and network management practices. The sample disclosure includes “typical frequency of congestion” for networks that manage congestion; how any specialized services may affect the last-mile capacity available for, and the performance of, broadband Internet access service; third-party device and application approval procedures for mobile broadband providers; security mechanisms; details on any inspection of network traffic, and the storage or transfer of such data; and practices for resolving end-user and edge provider complaints and questions. 

(Continue reading)

 

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This morning at its monthly open meeting, the Federal Communications Commission adopted net neutrality rules which largely adopt existing Internet traffic and management practices, impose new non-discrimination and transparency rules, but leave room for specialized or managed services and usage based billing. The order is notable for basing jurisdiction mostly on Title I and ancillary jurisdiction, rather than reclassifying broadband as a Title II common carrier service. (The order has not yet been released but we will include a link here once it is made available to the public, along with a DWT Advisory analyzing the order in more detail.  UPDATE: Fairly detailed press release is available on the FCC website, as well as the Commissioners' statements.)

As expected, the vote was adopted on a 3-2 partisan vote. Democratic Commissioners justified the order as a compromise necessary for maintaining the Internet as an open platform where innovation may occur without seeking permission, while providing certainty conducive to investment at the edge as well as in the broadband network core. In vigorous dissent, Republican Commissioners questioned any need for departing from the successful history of building and maintaining an open Internet by leaving it largely free of government regulation.
 

Continue Reading...

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Earlier today, Chairman Genachowski held a press conference to deliver his remarks on his proposed Open Internet rules, which are scheduled for vote at the FCC's December 21 open meeting.  The Chairman prefaced his summary of the rules by noting that they are in principle rooted in policy statements of past "Republican" Chairmen Powell and Martin, is consistent with President Obama's goal of keeping the Internet "open and free", and builds upon the framework first developed by Rep. Waxman earlier this year. 

In summary, the Chairman outlined the basic concepts of his proposal that grants consumers and innovators the right to:

1. Transparency, including basic information about how networks are managed;
2. Send and receive lawful Internet traffic (ie, prohibit blocking), and use devices (that are not harmful to the network) of their own choosing; and
3. A level playing field, including a bar to unreasonable discrimination in content transmission;

The rules also recognize providers' right to "reasonable" network management that will give providers the flexibility to address congestion and "illegal" traffic, as well as maintain incentives to build-out and innovate broadband networks.

The Chairman made clear that the rules do not adopt the "reclassification" option that would have reclassified broadband as a Title II service.

Also, the Chairman's rules draw a distinction between mobile and fixed broadband services.  The Chairman acknowledged that mobile services are still at an early stage of development, but are rapidly evolving so that the FCC will be prepared to act in the event that anti-competitive or anti-consumer practices arise.

UPDATE: The FCC has just released a statement by Commissioner McDowell condemning the Chairman's proposal.  His brief statement is available here.

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Last night the FCC released its tentative agenda for its next open meeting to be held December 21.  Two items are scheduled for consideration, the first being an Order (not a rulemaking or inquiry) adopting Open Internet rules, also known as net neutrality.  The text summarizing the agenda item is as follows:

Open Internet Order: An Order adopting basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression. These rules would protect consumers’ and innovators’ right to know basic information about broadband service, right to send and receive lawful Internet traffic, and right to a level playing field, while providing broadband Internet access providers with the flexibility to reasonably manage their networks.

Chairman Genachowski also circulated his proposal to the other FCC Commissioners late last night In anticipation of the December meeting to vote on the Order. 

The FCC website indicates that the Chairman will deliver remarks on his proposal, which is expected to begin at 10:30 am today.  A live webcast is available on the FCC's website at http://reboot.fcc.gov/live/.

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On October 12, the U.S. Government Accountability Office released its report on the state of broadband in developed countries.  According to the report, the GAO was asked to address:

1. The status of broadband deployment and adoption in developed countries,
2. Actions selected countries have taken to increase deployment and adoption, and
3. How recommendations in the National Broadband Plan align with the selected countries' actions.

The GAO analyzed information from 30 developed countries, with a focus on 7 countries and their broadband policies. The report found that deployment in the U.S. is actually comparable to deployment in developed countries - the vast majority of countries studied had over 90 percent broadband deployment.  Adoption rates, however, were found to vary considerably among countries based on various factors such as cost, computer literacy, and population.

The report found that the 7 focus countries, including Canada, Japan, and the UK, have all taken certain actions to help increase broadband deployment and adoption, including:

1. Instituting plans and policies,
2. Providing funds through public/private partnerships,
3. Increasing competition,
4. Expanding online services, and
5. Providing digital literacy training, consumer subsidies, or both.

In particular, the report found that increasing competition has led to increased broadband adoption in these countries due to more consumer choice and competitive prices, and that lowering deployment and consumer costs through universal service funds and consumer subsidies can facilitate adoption.

The full report is available from the GAO's website here.

 

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In adopting its Second Memorandum Opinion and Order during yesterday's open meeting, the FCC is pressing forward with its plan to allow unlicensed fixed and mobile wireless devices to operate in unused parts of TV spectrum (the TV “white spaces”).  According to FCC Chairman Genachowski, this is the first significant block of spectrum made available for unlicensed use in more than 20 years.

Yesterday’s unanimous decision modified certain provisions of the FCC’s November 2008 White Spaces Order (a copy of which is available here; and discussed in detail in an earlier DWT Advisory) in response to seventeen petitions for reconsideration. While the Second Memorandum Opinion & Order upholds the majority of the FCC’s findings in the 2008 White Spaces Order, the Commission did make some widely anticipated changes to the original rules.

Eliminated the Device Sensing Requirement - First, the Commission revised a portion of a two-part requirement that the new white space devices use sensing technology that can detect when spectrum is actually being used, and consult with an incumbent spectrum user database when a device seeks to locate available white space for transmitting its signal. The Commission eliminated this “belt and suspenders” approach and determined that the device sensing requirement will no longer be mandatory – just encouraged. The FCC also indicated that it has not yet selected the private companies that will administer the geolocation database of incumbent spectrum users. Further, the FCC’s Office of Engineering & Technology still has to finalize technical standards relating to the database.

Additional Interference Protection - The Commission also revised its original rules to provide additional interference protection to existing white spaces spectrum users, which are predominantly TV broadcasters and wireless microphone users. Specifically, the revised rules now will reserve two vacant UHF channels on a nationwide basis for wireless microphone use. In addition, the revised rules will allow large users of wireless microphones (users of more than 12 microphones), such as Broadway shows and sports stadiums, to register for protection in the incumbent spectrum user database, but the registration must have been done in advance of the event and the public will be given the opportunity to review and comment on the request. Further, the revised rules will maintain a separation distance between TV white space devices and wireless microphones permitted to be registered in the database.

Cable Headend/TV Translator Protection Issue - The original rules provided that cable headend and TV translator receive sites located beyond 80 km from the edge of a television station's protected contour cannot register for protection in the incumbent spectrum user database. In yesterday’s Order, the Commission recognized that cable headend, TV translator and other MVPD receive sites beyond that 80 km distance may also need protection. Under the revised rules, operators of such sites can petition for inclusion within 90 days of the effective date of yesterday’s order. It is possible that if such requests are not opposed that they would summarily be granted. If an operator misses that window, it would be much more difficult to obtain protection for preexisting sites, so operators should consider now whether they have such sites and if they wish to request protection.

Chairman Genachowski seemed to indicate that the FCC would press forward with its implementation of the White Spaces plan regardless of the pending legal challenges filed against the 2008 White Spaces Order by the broadcast industry.
 

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Today the FCC released a Public Notice seeking comments on what the FCC calls the "business broadband marketplace."  While this comment cycle is not directly related to any current FCC proceeding (the docket number - WC Docket No. 10-188 - was only created yesterday), the magnitude of information sought hints at the establishment of future regulatory policies, if not rules, regarding broadband service offerings to businesses, that may impact aspects of other Commission broadband initiatives.  Indeed, the Public Notice suggests that the Commission intends to institute regulatory policies over the business broadband marketplace, stating up front that the "business broadband marketplace...requires policies that enable...competitive retail markets, incentives for investments in facilities, and access where competitive infrastructure cannot be economically deployed."  In addition, the Public Notice indicates that the Commission recognizes that "[d]ifferences in the technology used to provide a particular service may cause that service to be subject to significantly different policies, which may undermine competition policy objectives."  This seems to suggest that the Commission prefers a single, uniform policy over broadband business services, regardless of the transmission, technology or facilities used.  (The Public Notice could also be a precursor to the Commission's forthcoming rulemaking in Q4 of this year regarding the collection and analysis of industry-wide data on key broadband metrics (subscribership, prices, performance) for business (and retail) customers.)

Basically, the Commission wants to know everything about "the universe of business broadband service inputs, where they are available, and how they are used."  The Public Notice specifically identifies a number of issues for which it seeks further information, including, among other things, (1) the different types of transmission services, technologies and facilities used to provide business broadband; (2) the various combination of services, technologies and facilities used; (3) trends in the business broadband marketplace, including pricing and technology trends; and (4) the impact of non-traditional marketplace participants (e.g., cable and wireless) and non-carrier wholesale customers (e.g., consumer electronics companies embedding broadband services in their devices) on the marketplace.

Comments are due October 15, 2010.  Reply comments are due November 4, 2010.

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Yesterday the Federal Communications Commission announced that its recent Open Internet Public Notice, which seeks comment on two "under-developed issues" in the Open Internet Proceeding, was published in the Federal Register, thus setting the comment cycle for this public notice.  Comments are due October 12 and reply comments are due November 4.

As we discussed earlier here, the Open Internet Public Notice is part of the Open Internet proceeding, which was initiated on October 22, 2009 and designed to impose “network neutrality” rules on Internet service providers, including nondiscrimination obligations, limits on network management techniques, and disclosure requirements. This Public Notice seeks additional comments regarding (1) "managed" or "specialized" services, and (2) open Internet principles for mobile wireless services.

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This week the Federal Communications Commission issued three important items related to the National Broadband Plan, and broadband services generally. 

On September 1, the Commission issued a Public Notice to initiate a Further Inquiry Into Two Under-Developed Issues In The Open Internet Proceeding (GN Docket No. 09-191, and WC Docket No. 07-52).  The original Open Internet NPRM (which we discussed at length here) was released October 22, 2009 over two partial dissents, and was designed to impose “network neutrality” rules on Internet service providers, including nondiscrimination obligations, limits on network management techniques, and disclosure requirements.  As discussed in more detail in the Public Notice, comments submitted in this and other proceedings have prompted the Commission to further solicit public discussion regarding two "complex" issues that were addressed "in less detail" than other issues in the NPRM.   First, the Commission seeks additional comments about concerns and policies related to "managed" or "specialized" services.  The NPRM had appeared to be more sensitive to allowing innovation in IP managed services outside of Open Internet regulations, so the Further Inquiry could affect the regulations as originally proposed. 

Second, the Commission seeks additional comment on "how, to what extent, and when" its "openness principles" should apply to mobile wireless services.  The Public Notice specifically noted the fact that, since the NPRM was released in October, recent developments warranted updating the record on certain questions related to wireless, namely, the emergence of new business models by certain wireless carriers to introduce pricing plans that charge different prices based on consumers' level of data consumption, and Verizon's and Google's recent proposal for open Internet legislation that would exclude wireless.

Today, the FCC released an Order extending the deadline for filing reply comments in its pole attachment rulemaking proceeding (WC Docket No. 07-245) to Monday, October 4, 2010.  Reply comments previously were due on September 13, but in response to a petition for extension filed by an industry organization representing electric utilities, the Commission decided to extend the deadline by three weeks.

Also today, the Commission released its tentative agenda for its September open meeting.  According to the release, the Commission intends to discuss four items: (1) TV White Spaces Second Memorandum Opinion and Order; (2) E-Rate Broadband Order; (3) E911 Location Accuracy Second Report and Order; and (4) E911 Location Accuracy FNPRM and NOI.

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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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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 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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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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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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The U.S. Senate Committee on Commerce, Science, and Transportation has rescheduled its review of the National Broadband Plan to April 14, 2010.  This hearing was previously scheduled for Tuesday, March 23, 2010. Currently, Chairman Genachowski is the only witness scheduled to appear.  More meeting information is available on the Commerce Committee's website

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The FCC has made available the Chairman’s and the Commissioners’ prepared statements for the March 25 hearing before the House Committee on Energy and Commerce, Subcommittee on Communications, Technology and the Internet.

• Chairman Genachowski
• Commissioner Copps
• Commissioner Clyburn
• Commissioner Baker
• Commissioner McDowell

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The Senate Commerce Committee cancelled its hearing on the National Broadband Plan, which was originally scheduled for March 23, most likely due to the healthcare debates.  Reports indicate that the Committee will try and reschedule before the Easter break. We will post the new date as soon as it is released.

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By Robert G. Scott, Jr. and James M. Smith

On March 16, 2010, the Federal Communications Commission (FCC) presented to Congress its long-anticipated National Broadband Plan, as mandated by the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”). Thirteen months in the making and weighing in at nearly 400 pages, “Connecting America: The National Broadband Plan” (the “Plan”) has occupied a disproportionate share of the FCC’s time and energy for the last year and, given the breadth and sheer quantity of its analysis and proposals, it will continue to be the single greatest focus of the agency for years to come.

Section 6001 of the Recovery Act, signed into law by President Obama on Feb. 17, 2009, less than a month after his inauguration, mandated the dispersal of $7.2 billion through grant and loan programs to expand broadband deployment to, and adoption by, unserved and underserved areas and vulnerable populations. Those programs—the Broadband Technology Opportunities Program (BTOP) administered by the Department of Commerce and the Broadband Initiatives Program (BIP) administered by the Department of Agriculture—are underway, and by law, all of these grants must be awarded by September 30, and the projects completed within three years thereafter.

But Subsection 6001(k) of the Recovery Act also directed the FCC to submit to Congress a National Broadband Plan for the longer term, to pick up where these broadband deployment and other short-term projects leave off “to ensure that all people of the United States have access to broadband capability and [to] establish benchmarks for meeting that goal.”

Congress ordered the FCC to include (1) “analysis of the most effective and efficient mechanisms for ensuring broadband access” by all Americans, (2) “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure” by the public, (3) “an evaluation of the status of deployment of broadband service, including progress of projects supported by the [BTOP and BIP] grants,” and (4) “a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.”

Continue reading DWT"s Analysis of the National Broadband Plan.

Download the National Broadband Plan. 

You can also directly access DWT's analysis of specific topics under the National Broadband Plan here:

• Broadband Deployment
• High-Cost Universal Service
• Intercarrier Compensation
• Mobile Broadband Services and Spectrum Initiatives
• Infrastructure Deployment -- Poles, Conduits, and Rights of Way
• Navigation Devices
• Privacy Advisory
• Cybersecurity
• E-Rate Upgrade
• Broadband Adoption
• Accessibility (Persons with Disabilities
• Smart Grid
• Consumer Disclosure
• Broadband Availability in Tribal Communities
• E-Health Records

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