BROADBAND LEGISLATION COULD RESURFACE, HOUSE AIDE TELLS CATO

Waltzman said FCC needed to accelerate its proceedings and should take “decisive action” soon as Congress expected Commission action before end of year. Broadband bill could look different from Tauzin-Dingell bill (HR-1542), he said, as long distance provisions could be less relevant now as more Bell companies were rolling out long distance. But there still could be need for legislation to address the regulation of broadband facilities, which was part of bill, Waltzman said.

Discussion shifted to nature of competition in industry and Waltzman doubted unbundled network element platform (UNE- P) would advance competition. “UNE-P is regulatory fiction,” he said: “It was not created by the Telecom Act, it was created by the FCC.” Important question for UNE-P is if it’s “means to an end” or just “an end,” Waltzman said. “If UNE-P is the mode of competition, this is not competition,” he said. “You don’t have to build anything. It provides a disincentive to invest.” Competition to Bell companies is more likely to come from other communications providers, most notably cable and wireless, Waltzman said. While there are “kinks” in cable telephony and voice-over-IP, such technology is improving and is likely source of competition to Bells, he said. However, he acknowledged that such technology hadn’t advanced to point where members of Congress could begin to debate whether it was effective competitor to Bell companies.

Spectrum management is likely to be addressed by Congress, starting with legislation to establish relocation trust fund to move govt. spectrum holders, Waltzman said. Soon-to-be Senate Communications Subcommittee Chmn. Burns (R- Mont.) told Communications Daily that Senate was likely to examine “in depth” reform of spectrum management. (Burns wasn’t present at Cato conference.) Waltzman said public safety spectrum would be issue Congress would follow, including interoperability and interference in 800 MHz bands. Tauzin also is likely to focus on speeding DTV transition and potentially addressing FCC reform, Waltzman said. He said Tauzin was “delighted” that Sen. McCain (R-Ariz.) would be Senate Commerce chmn. as both shared goal of more robust broadband market.

FCC Comr. Abernathy outlined Commission’s spectrum management regime, including auctioning and use of unlicensed spectrum. She said Commission should use both “property rights approach” and “commons model” in managing spectrum. “Commons model” creates areas of spectrum where licensing isn’t necessary, although some technological standards must be met. She said govt. was unlikely to force relocation of existing licensees to permit unlicenced use. “It is not clear that government would be prepared -- or is currently authorized -- to pay the price tag for moving incumbents to create a new common,” Abernathy said. “I think the FCC and the industry must think creatively as to what can be done on the regulatory side. We must assess where and how new commons opportunities can be created.” She said there were opportunities to create new commons in virgin spectrum.

Abernathy said policymakers should make “legacy concession” and avoid using current spectrum policy to atone for past spectrum management inequities. “Although I recognize what may appear to be the unfairness of this approach, I cannot think of any paradigm that would allow us to achieve retroactive uniformity,” she said. She did identify 3 cases where she said incumbents should be forced to relocate: (1) Failure of a secondary market. (2) Irrational blockage of spectrum from evolving to its “highest valued use.” (3) Need to offer new service that was immediately essential to public welfare. Abernathy said there was “squish” problem, where advocates in debate were tending to push FCC’s separate roles and stages of spectrum management together into one concept. She stressed that FCC had separate steps when addressing spectrum issues, and “squishing” undermined policymakers’ ability to focus on current tasks.

Abernathy also addressed international aspects of spectrum management, saying many spectrum uses needed to be harmonized with international bodies. U.S. leadership in forums such as the International Telecom Union (ITU) and the World Radio Council were “essential” to keep foreign markets open, she said. She described the ITU as an “archaic” institution, but said U.S. participation was essential to robust spectrum management.