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

Yesterday, the FCC released an Order and Further Notice of Proposed Rulemaking relaxing its rules to facilitate the use of microwave spectrum, particularly in the 7 GHz and 13 GHz bands (6875-7125 MHz and 12700-13150 MHz, respectively), for wireless backhaul.  The FCC’s action opened up 650 MHz of spectrum in rural areas where TV pickup operations are not already licensed. This decision implements a National Broadband Plan recommendation that the FCC “enhance the flexibility and speed with which companies can obtain access to spectrum for use as wireless backhaul and other wireless services” to promote broadband deployment, including 4G in rural America. The FCC adopted many of its earlier proposals, which we summarized here last year. Significantly, the new rules will not disturb existing CARS microwave licenses operating in the 13 GHz band. 

“Wireless backhaul” is use of spectrum instead of fiber, copper, or cable to transport data traffic over longer distances, typically from a wireless provider’s cell sites back to a wireline backbone network. The use of wireless backhaul will facilitate wireless broadband deployments by lowering costs and providing a practical alternative where fiber and other wired technologies are unavailable, particularly in rural areas.  

Briefly, the rule changes are as follows: 

·         The FCC will issue new fixed microwave service licenses under Part 101 in rural areas in the 7 GHz and 13 GHz bands.  Those bands have historically been exclusively available for the Broadcast Auxiliary Service (BAS) and Cable TV Relay Service (CARS). Traditionally, only MVPDs and broadcasters were licensed in these frequencies for both fixed and mobile video traffic transport. Under the new rules, the FCC will license new entrants only in the more rural areas where no mobile CARS or mobile BAS (or “TV Pickup”) stations are currently licensed. The FCC kept this limitation in order to protect mobile CARS and BAS electric newsgathering (ENG) operations, which send signals of live news reports back to broadcast studios or cable headends. The FCC found that any broader general use of these bands in urban areas would risk too much interference with ENG transmissions. In addition, to preserve future ENG operations in rural areas, the FCC also reserved 50 MHz in each of the two bands for exclusive rural mobile CARS and mobile BAS use.  

·         The FCC eliminated the “final link” rule, which prohibited broadcasters from using non-BAS frequencies for their last mile video backhaul links to studios. The FCC adopted this change despite some concern that it would reduce the amount of wireless spectrum available in urban areas for telecommunications backhaul links.

·         The new rules allow for adaptive modulation in microwave operations, which will enable temporary divergences from the FCC-mandated minimum carriage payloads. Traditionally, the Commission required a certain amount of traffic to travel over microwave links in order to ensure efficient use of the spectrum. This new operating flexibility, the FCC reasons, will increase both the long-term reliability and cost-effectiveness of middle-mile links.  

·         Finally, the FCC declined to adopt its proposal to allow licensees to add “auxiliary stations” to existing point-to-point microwave licenses. Under this proposal, microwave licensees would have been able to add multiple new antenna sites to an existing license in order to re-use authorized frequencies in a way that varies from the underlying license parameters. Instead, the current rules will remain in place, which require microwave spectrum licensing on a site-by-site basis for each path, frequency, and antenna deployed.  The FCC determined the proposal would have caused too much interference to existing licensed microwave operations.  

The FCC also asked for comments on certain proposed additional rule changes. Among those proposals are:   

·         Allowing smaller antennas in the 6 GHz, 18 GHz, and 23 GHz microwave bands. In comments submitted on last year’s NPRM, many parties pointed out that carriers could deploy smaller antennas more cheaply because they put less weight and load on towers. Other commenting parties opposed the idea, noting that smaller antennas often use spectrum less efficiently by necessity of their size, so their deployment could lead to more harmful microwave band interference.   

·         Whether to further relax the minimum payload standards for microwave operations in rural areas. As with the adaptive modulation rule change discussed above, exempting licensees in non-congested areas from minimal capacity requirements could lead to cost savings in wireless backhaul. Critics charge that further reductions in efficiency standards (even if limited to rural areas) would simply encourage more inefficient spectrum use while simultaneously discouraging technical innovation.  

·         Authorization of wider channels in certain microwave band. Currently, microwave licensees in the lower 6 GHz and 11 GHz bands are limited to 30 and 40 MHz authorized channels. Commenters argue these bands could easily accommodate new licensed operations using 60 and 80 MHz channels. The FCC asks whether increases in authorized channel size are appropriate in light of increased backhaul traffic demands, or whether such large allocations would merely encourage inefficient use and needlessly deplete this spectrum.  

Comments and reply comments on the NPRM are due October 4 and October 25, 2011. 

 

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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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At its January 25 open meeting, the FCC expects to adopt an order and FNPRM addressing the need for state and municipal public safety wireless networks to use uniform or interoperable standards. The FCC’s goal in this proceeding is to ensure public safety agencies make use of the best possible technologies and networks in times of localized emergencies. The need for this effort is underscored by the failures and outages of public safety wireless networks during Hurricane Katrina and September 11.

Importantly however, with this item the FCC will not decide the fate of the D Block of 700 MHz spectrum, which was initially allocated for joint public safety / commercial use. Since failing to sell during FCC Auction 73 in 2008, this 10 MHz block of broadband-suitable spectrum has remained unused while policymakers debate whether commercial or public safety use (or some combination of the two) is most appropriate. Its future remains controversial. For background, see DWT’s previous advisory explaining the FCC’s original proposed plan and service rules for the 700 MHz D Block.
 

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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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On Tuesday, the FCC followed through on its earlier announcement by adopting three wireless spectrum items intended to facilitate wireless broadband deployments. The items were: 1) a broadcast spectrum reorganization NPRM; 2) an experimental licensing NPRM; and 3) a "dynamic" spectrum access NOI. While the first item seeks to make new spectrum available in the near term, the second and third items explore longer term solutions to the wireless broadband plan goals.

Broadcast Spectrum Reorganization NPRM

The first item advances the goal of freeing up 120 MHz of broadcast spectrum through voluntary repacking to allow for additional wireless broadband use. In this item, the FCC proposes three specific sets of rule changes intended to pave the way for broadcaster relocation so that the spectrum can be cleared for incentive auctions. First, the FCC proposes the formality of amending its spectrum allocation tables to create co-primary fixed and mobile wireless allocations along side all current broadcast television band allocations. Second, the FCC proposes rule changes to enable two or more broadcasters to share standard 6 MHz channels, which are typically used for single broadcasts today. Third, the FCC proposes new technical rules to enhance the reach of digital broadcasts in the VHF television bands (in the 54 to 216 MHz frequency range) in order to encourage broadcasters to relocate to VHF frequencies and abandon their operations in the UHF television bands (470 to 698 MHz).

Additional details about these proposed changes can be found in this summary on the Broadcast Law Blog by David Oxenford.

Experimental Licensing NPRM

This second item proposes several rule changes to the FCC’s experimental licensing regime. The most significant of these is a set of proposals to create three new classes of experimental licenses conferring substantial spectrum-use testing authority for three kinds of eligible entities: universities, private sector researchers, and medical centers. These authorizations would give qualified applicants wider authority to use the public airwaves for experimentation, and would eliminate the need to apply for new experimental licenses for each research project, for each new spectrum band used, and for each modification to an existing experiment. Licensees under this new regime would be given blanket rights to conduct experiments over large portions of the radio spectrum as long as experimental operations are conducted on a non-interference basis with existing licensed wireless operations.

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 has released its tentative agenda for its next open meeting on November 30, and it appears that this month's meeting will be focused entirely on spectrum issues.  First, the Commission intends to consider an NPRM to facilitate use of the VHF and UHF TV bands for mobile broadband use.  Second, the Commission will consider an NPRM to make its experimental license rules more flexible by easing restrictions on universities, research organizations and other institutions developing new wireless services and devices.  Finally, the tentative agenda anticipates that the Commission will consider an NOI to accelerate "opportunistic" use of underdeveloped spectrum in both the licensed and unlicensed bands.

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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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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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Following up on our post from last week, the FCC’s NPRM and NOI on ways to improve regulation of microwave wireless spectrum used for the “backhaul” transport of network traffic focuses in many parts on the need to balance efficient use of the wireless spectrum with measures to ensure facilities can be deployed quickly. Last Thursday’s FCC action begins implementation of one of the spectrum initiatives set forth in the National Broadband Plan. This initiative aims to remove regulatory barriers to the deployment of wireless backhaul links, which constitute a critical piece of the system architecture of broadband networks. Among other uses, backhaul can be used for linking wireless cell towers to the wired broadband networks.

The NPRM proposes three rule changes: removing spectrum use restrictions, altering technical rules, and changing licensing requirements. First, the FCC proposes to eliminate the service-specific restrictions on certain microwave frequency bands used for the Cable TV Relay Service (CARS) and Broadcast Auxiliary Service (BAS). This includes a proposal to open up the largest current CARS band – the 500 MHz allocation at 12.7 to 13.2 GHz – for alternative uses. While the CARS and BAS bands are currently designated for the transport of video programming by cable television system and broadcast stations, the proposed change would allow any parties to apply for FCC licenses in those spectrum bands for microwave backhaul of any kind of traffic. Similarly, the FCC proposes to eliminate a rule which prohibits broadcasters from using general fixed microwave spectrum to deliver video to studios when BAS frequencies are available. In proposing these changes, the FCC emphasized that no existing CARS or BAS license would be altered, and that any new users would be required to coordinate with existing licensees in these bands. The FCC asked for comment on a variety of aspects of this proposal, including whether opening up these bands would have an adverse impact on cable operators’ future use of CARS spectrum.

Next, the FCC proposes a minor change to allow for “adaptive modulation” technology, which can reduce signal fading and allow microwave signals to propagate further. The use of adaptive modulation requires temporary departures from the minimum payload capacity requirement for wireless traffic delivery, a rule designed to ensure microwave spectrum is being fully utilized. Under the proposal, the minimum payload thresholds need not be met while signal fading is occurring to allow parties to take advantage of the modulation technique.

Finally the FCC proposes a set of rule changes to allow the addition of “auxiliary stations” to existing microwave authorizations. Under the current rules, microwave applicants must provide specific site-based information to the FCC to obtain a license, and the FCC will issue authorizations only for the applied-for paths, frequencies, and antennas. Under the proposed rule, a holder of a microwave license for a given path and set of frequencies would be allowed to add multiple new antenna sites to an existing authorization, either on a conditional authority or blanket authority basis. This would allow license holders to “re-use” their authorized frequencies with additional antennas surrounding the licensed link, similarly to how mobile wireless licensees currently re-use spectrum within an area by transmitting signals from multiple base station antennas simultaneously. Proponents of the rule changes claim it will allow for more efficient microwave spectrum use, while opponents have expressed concerns that the changes could lead to congestion in the microwave bands and unacceptable interference to existing users. 

In the NOI the FCC asks whether rural broadband service deployments in particular could be accelerated by eliminating or revising certain microwave spectrum efficiency standards and antenna design requirements. The FCC noted that it often gives waivers of the capacity requirements for rural microwave systems to allow them to provide better service at lower cost through less efficient transmission standards, which would be impractical in heavily-trafficked urban environments but are acceptable where spectrum demand is lower. Along the same lines, the FCC asks whether it could revise its technical standards for microwave frequency usage (at least in certain bands or areas) so that smaller and more inexpensive antennas could be used without creating interference problems that would offset any gains from accelerated network deployments.

Comments and reply comments are due 60 and 90 days after publication of the item in the Federal Register.
 

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The FCC has released its tentative agenda for its August 5th open meeting.  Like its July meeting, this one is fairly light, with only two agenda items scheduled for adoption.  One is a proposed NPRM and NOI which will "seek to remove regulatory barriers to the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications, to promote broadband competition and investment in rural and non-rural areas."  This issue was recommended by the National Broadband Plan, as we discussed earlier.

The other agenda item is not directly related to broadband, but can be seen as perhaps a precursor of things to come.  The second agenda item involves a Report and Order and FNPRM to ensure that advanced voice communication devices are hearing aid-compatible.  This comes during the FCC's celebration of the 20th anniversary of the Americans With Disabilities Act (ADA), which has recently become both a political and industry issue.  As we discussed earlier, both the House and Senate are currently considering similar bills that would update the ADA to require advanced services and devices be ADA-compliant, including Internet videos and mobile devices, as well as reinstate the FCC's video description rules.  The Senate bill (S.3304, Pryor) was recently moved out of subcommittee to the Senate Commerce Committee on July 15.  Similarly, the House bill (HR 3101, Markey) was heard and marked-up by the House Subcommittee on Communications, Technology and the Internet, then forwarded to the full Committee on Energy and Commerce on June 30.  As Sen. Kerry asserted during hearings on S.3304, Congress intends to pass new ADA laws before the end of the year.  With the finance and healthcare bills taken care of, and the fact that Markey's House bill, which had been stuck in subcommittee since June 2009, was marked up and sent to committee a couple weeks ago, we could indeed see a new law that would impose new ADA requirements on a broad spectrum of industry players, including content providers, programming distributors, device manufacturers and application developers.

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Last Thursday, the FCC voted to adopt a Notice of Proposed Rulemaking and Notice of Inquiry to encourage investment and deployment of terrestrial wireless facilities. This FCC action represents the first step in implementing the National Broadband Plan recommendation to provide Mobile Satellite Service (“MSS”) licensees with increased flexibility aimed at encouraging terrestrial spectrum build-out (as we previously advised).

By way of background, MSS licensees were originally authorized to provide satellite-to-earth communications services. In 2003, the FCC created rules to allow MSS licensees to provide terrestrial wireless services over the same frequencies. This terrestrial wireless service was to be provided in conjunction with the satellite offerings (known as the Ancillary Terrestrial Component or “ATC”) and would allow the MSS licensees to bolster and strengthen the signals sent from space stations, thereby providing a better overall service. The use of the ATC for enhanced services was contingent upon the MSS licensees providing fully functioning satellite services, so as to guarantee that the important public safety, federal government, and rural uses of MSS communications in this spectrum would not be foregone in favor of pure wireless broadband deployments. In the National Broadband Plan, the FCC identified 90 MHz of MSS spectrum suitable for wireless broadband services in the 1.5 GHz, 1.6 GHz, 2.1 GHz, 2.2 GHz, and 2.4 GHz bands.

The NPRM proposed two concrete rule changes, one largely procedural, and the other substantive. First, the FCC proposes to amend its spectrum allocation tables to create co-primary fixed and mobile wireless allocations along side the current satellite allocation for 40 MHz of the broadband-suitable MSS spectrum, in the 2.1 and 2.2 GHz bands. Noting that MSS and ATC service deployments in these bands have been slow, the FCC stated that the change to the spectrum allocation takes the first formal step to “lay[ing] the groundwork for future flexibility in use of this spectrum…” The Commission followed this proposal by asking about next steps in the NOI, such as whether current MSS licensees in these bands should be allowed to recover money in a voluntary “incentive auction” of the spectrum for terrestrial wireless services only. In the same vein, the FCC asked whether disaggregations or modifications of the MSS licenses should be allowed to facilitate third party wireless deployments in these bands.

The second change proposed in the NPRM would apply the FCC’s spectrum leasing rules, first adopted in 2003 and now applicable to most FCC-licensed wireless services, to all MSS spectrum as well. The spectrum leasing rules allow third parties to contract with FCC spectrum licensees to deploy services and benefit from operations over the spectrum, while the licensee retains varying levels of oversight or legal control and responsibility for use of the spectrum. The Commission observed that it had already approved one MSS spectrum leasing arrangement and had tentatively cleared a second MSS licensee to do so, subject to certain restrictions on spectrum leases to the two largest wireless carriers. The FCC asked for comment on whether its wireless spectrum leasing rules should be applied in full to MSS licensees or if restrictions should be built in to account for the unique nature of MSS spectrum, or to protect competition in wireless services.
 

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

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

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

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

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

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

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

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

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

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

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

 

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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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