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

By James Smith and Danielle Frappier

The Federal Communications Commission (FCC) yesterday (Jan. 31, 2012) adopted its long-awaited Report and Order and Further Notice of Proposed Rulemaking (Order and Rulemaking) reforming and modernizing the federal Low Income program, with the goals of preserving this important program while introducing significant program funding reductions and cost savings. The Order sets a savings target of $200 million in 2012, and seeks to save up to $2 billion over the next three years.

As we have described in our Mar. 7, 2011 and Aug. 9, 2011 advisories, the Low Income component of the Universal Service program has provided subsidies for telephone services to low income Americans by paying a portion of their monthly recurring charges (Lifeline) and service activation fees (Link Up).

The full text of the FCC’s Order has not yet been released; we will provide a more detailed report when it becomes available. Based upon the FCC’s brief News Release, FCC Commissioner and staff statements during the FCC’s meeting and a subsequent press conference yesterday, we can report the following key elements of the Order:

 

(Continuing reading here)

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Following its release of the most recent intercarrier compensation and USF reform proposal (NPRM), the FCC has announced that it will convene the first of several “public workshops to identify solutions to key issues in the USF/ICC proceeding.”  (See Public Notice)

This first workshop will be held at the FCC’s offices in Washington, D.C. on Wednesday, April 6th. The Commission will focus only on intercarrier compensation reform proposals at this workshop. Specific panelists or an agenda have not yet been released. The Commission is expected to focus on a number of the issues already teed up in the NPRM, including potential resolution of issues like VoIP compensation, phantom traffic, access stimulation and other similar issues.

Notably, in announcing this workshop the five Commissioners posted a joint blog entry (available here ) announcing their intent to “mov[e] to an Order within a few months” of closing the record in May of this year. Issuance of an order within that timeframe would be extraordinary, especially in light of the speed at which prior members of the FCC have addressed ICC reform issues. Whether the Commission can follow through on this aggressive timeline is, of course, a question as yet unanswered. Suffice it to say, many eyes will be watching.
 

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Yesterday the FCC released a tentative agenda for its March 3rd open meeting that includes seven matters for discussion, including rules for video description and advanced communications services, as required under the recent federal disability legislation known as the Twenty-First Century Communications and Video Accessibility Act (CVAA). (See earlier DWT Advisory on the CVAA here.)

The Commission intends to adopt an NPRM proposing rules to implement the CVAA requirement that providers of "advanced communications services" and manufacturers of equipment used for such services make their products accessible to people with disabilities.  While the CVAA (and presumably the rules) broadly defines "advanced communications services" to include interconnected VoIP (as defined by FCC rules), non-interconnected VoIP, electronic messaging service (i.e., text messaging), and interoperable video conferencing service, the CVAA exempts current services and equipment that, as of the day prior to CVAA date of enactment - Oct. 8, 2010 - were subject to Section 255 of the Communications Act, which similarly deals with the accessibility of "telecommunications" services and equipment, including interconnected VoIP.

The agenda also indicates that the Commission intends to adopt an NPRM to reinstate the video description rules previously adopted by the Commission in 2000.  As we discussed earlier here, the video description rules were adopted by the FCC but then struck down by the D.C. Circuit.  The CVAA requires these rules to be reinstated by October 2011, although actual compliance will be subject to a phase-in schedule.

For more information about these and other requirements under the CVAA, including a timeline of relevant dates and deadlines, please read our DWT Advisory here.

Other matters that will be discussed at the meeting include rules to streamline and clarify retransmission consent negotiations, a lifeline/link up reform and modernization NPRM, and several matters regarding Native Nations issues (eg, spectrum and radio use on Tribal Lands).

 

 

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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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The FCC’s Notice of Proposed Rulemaking ("NPRM") for the creation of a new Mobility Fund was published in the Federal Register this morning, starting the clock for comments and replies. This NPRM was adopted at the Commission’s October 14 open meeting and is part of its effort to implement the recommendations of the National Broadband Plan. We wrote about the Mobility Fund proposal in an earlier post and in a DWT advisory. Comments for this NPRM are due on December 16, and replies are due on January 18.

For further information, please contact Danielle Frappier.

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In today's open meeting, the FCC unanimously adopted an NPRM that proposes to create a new universal service program, the "Mobility Fund," that would provide subsidies to mobile providers in areas of the country currently lacking 3G coverage. They have proposed to fund this effort with a one-time allocation of $100-300 million, funded by USF money reclaimed from Verizon Wireless and Sprint. The FCC has proposed to allocate the funds through a reverse auction mechanism.

Look for a DWT Advisory with analysis of the NPRM that was just released by the FCC.  In the meantime, you can read the FCC's news release summarizing the NPRM here.  A copy of the NPRM is available here.

UPDATE: The DWT Advisory: "FCC Seeks Comment on New Mobility Fund" is now available here.

 

 

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In yesterday's open meeting, the FCC adopted an order that implements the E-rate reforms proposed as part of the agency's implementation of the National Broadband Plan. The most significant reforms that were adopted are:

• Increase in funding by indexing the $2.25 billion to the rate of inflation (resulting in "less than" $25 million in additional funding in the coming year). This increase will be funded by repurposing funding relinquished by competitive "ETCs" exiting the high cost program, as was decided in a decision earlier this month (responding to a petition from Corr Wireless, a copy of which is available here.)
• Existing dark fiber to be funded under the "miscellaneous" category on the Eligible Services List ("ESL") in order to avoid having to categorize dark fiber as either a telecommunications or information service. The initial proposal did not include (at least not explicitly) the requirement that only existing fiber be eligible, and appears to have been added out of concern that e-rate funding would be used for build-out costs.
• Off-campus use of wireless devices to be initially only explored in pilot programs.
• Community, after-hours use of e-rate funded facilities at schools approved, as anticipated.

Commission staff had indicated that they were unlikely to issue the text of the order that day, and it does not appear that the order has been released on the FCC's website yet. In the meantime, the press release and statements of the Chairman and Commissioners are available at:

Press release
Genachowski Statement
Copps Statement
McDowell Statement
Clyburn Statement
Baker Statement

UPDATE: The Commission's E-Rate Order is now available here.

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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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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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By Jim Smith

On July 15, 2010, the Federal Communications Commission (FCC) issued a new Notice of Proposed Rulemaking (NPRM) aimed at reinvigorating and reforming the perennially underutilized Rural Health Care (RHC) support mechanism of the Universal Service Fund (USF).

The deadlines for public comments and reply comments on this latest of the FCC’s initiatives to implement the recommendations of its omnibus National Broadband Plan have not yet been set, pending publication in the Federal Register, but are expected to be in early and late September, respectively.  We will send an update when these dates have been fixed. The FCC’s July 15 news release announcing the new proceeding can be viewed here, and the full text of the NPRM is here.

(Continue reading...)

UPDATE: Public comment dates on these proposals have now been set: Initial comments are to be filed by Sept. 8, and reply comments are due by Sept. 23.

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As expected from its tentative agenda released in late June, the Commission's July 15 open meeting will address three agenda items, including an NPRM to reform the Universal Service Rural Health Care Fund, and an NPRM and NOI to "increase value, utilization, and investment in the 2 GHz, Big LEO, and L-bands of the Mobile Satellite Service."   (The third agenda item deals with transitioning to an electronic tariff filing and formatting process.)

The July 15 Meeting Agenda can be downloaded here.

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Last week the Federal Communications Commission released its tentative agenda for its July 15 open meeting.  According to the agenda, the Commission plans to discuss three items, two of which are related to the Commission's broadband efforts to implement the National Broadband Plan.  Specifically, the Commission intends to adopt a Rural Health Care Reform NPRM to "expand the reach and use of broadband connectivity by health care providers throughout the nation."  The Commission also intends to adopt a Spectrum Flexibility NPRM and NOI "seeking comment on ways to encourage investment in terrestrial broadband services within spectrum allocated to mobile satellite services, while maintaining robust mobile satellite capability."  (The third item relates to transitioning to an electronic tariff filing process.)

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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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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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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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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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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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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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The FCC has released its tentative agenda for its next open meeting on April 21, 2010. The agenda identifies six potential items on the FCC’s plate related to the Broadband Plan. Specifically, the agenda indicates that the FCC plans to initiate the following proceedings at its April 21 meeting:

            (1) USF Reform NPRM and NOI

            (2) Mobile Roaming Order FNPRM

            (3) Network Gateway NOI

            (4) CableCARD NPRM

            (5) Broadband Network Survivability NOI

            (6) Cybersecurity Certification NOI

 

The agenda only provides brief, one-sentence summaries of what these proceedings will entail, so there is not too much to say for now. Please refer to DWT’s Advisory on the Broadband Plan for more further discussion of the Plan’s details and what you can expect in these proceedings.

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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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