FCC Doesn’t Meet 2010 Goals for National Broadband Plan

The FCC has approved orders in several key areas, including the release of a CableCARD notice of proposed rulemaking, a pole attachments order and further NPRM and the completion of a final TV white spaces order, among major items completed since the plan was released in March.

But the FCC has yet to act on some key spectrum items and NPRMs addressing changes to the Universal Service Fund and the intercarrier compensation regime called for in the plan to be completed in 2010. The two action items left undone from the June list touch on public safety -- release of a 700 MHz D-block order and a public safety roaming and priority access NPRM. A third, creation of a FCC-Native Nations Broadband Task Force, was made moot by launch of an FCC Office of Native Affairs and Policy, a pending FCC update will show.

By the end of March, the first anniversary of the plan, work is expected to be 86 percent complete, the spokesman said. The FCC has yet to update its progress checklist, available at http://xrl.us/bhf9kj, to reflect recent progress.

By the end of the first quarter in March, the FCC expects to finalize a backup power notice of inquiry, a server outage NPRM, a broadband data NPRM, an interconnection clarification, a spectrum on tribal lands NPRM, a Universal Service Fund transformation NPRM and an intercarrier compensation NPRM, the spokesman said.

The FCC will soon update its checklist to note that it released an opportunistic use of spectrum NOI, instead of a planned NPRM, the spokesman said. The list will also be updated to clarify that a proposed real-time text NOI and NPRM and Internet video and device accessibility NOI were superseded by the 21st Century Communications and Video Accessibility Act of 2010 and an FCC public notice on the law.

"The commission has completed nearly 70 percent of its very aggressive broadband agenda in the nine short months since the plan was sent to Congress last March,” said Mark Wigfield, spokesman for the Wireline Bureau. “We are on track to complete 85 percent of this agenda by the time we reach the plan’s one-year anniversary on March 17, 2011. The plan’s recommendations are well on their way to being realized."

Industry officials agreed last week that the net neutrality debate has delayed completion of the broadband plan. “Just like healthcare and financial services reform detracted from a stronger focus on economic policy last year, the focus on net neutrality diverted efforts from implementing the FCC’s very strong broadband plan,” said Robert Atkinson, president of the Information Technology and Innovation Foundation. “With net neutrality hopefully behind us, 2011 can be the year of the broadband plan."

Andrew Schwartzman, senior vice president at the Media Access Project, said the FCC is behind schedule in many other areas as well. “In fact, the delays in implementing the NBP have had a cascading impact on these other dockets,” Schwartzman said. “I am particularly frustrated at inaction on Media Bureau items, including the Quadrennial Review, as to which the commission promised the 3rd Circuit [Court of Appeals] that it would be far ahead of where it is now."

"I think Chairman [Julius] Genachowski and his staff would be the first to admit that work on net neutrality policy diverted resources away from other priorities,” said Jeff Silva, analyst at Medley Global Advisors. “This was simply inevitable. However, given the breadth of the plan and large number of rulemakings it spawned, it would not be necessarily fair to suggest the FCC is not making progress because some initiatives are behind schedule. One has to keep in mind that Genachowski’s agenda is as sweeping -- too much so, some could argue -- as any in recent memory. My guess is, with the net neutrality order behind it, regulatory action will accelerate in 2011 on NBP rulemakings in the pipeline.”

Hogan, Lovels telecom partner Dan Brenner said the broadband plan is densely packed and cuts across several agencies so that the Genachowski shouldn’t have to take full responsibility for the delay. “There were a number of recommendations that were made to other agencies and other parts of the government,” Brenner said. “The Department of Energy, for instance, has done a lot of work to get some smart grid moving along.”

Genachowski deserves credit for moving dense, controversial matters like the white spaces order and E-rate in the second half of the year, Brenner said. “He’s managed to move some important dockets and if this pace keeps up we'll see some major items go forward,” he said. “I think now that the commission has completed its net neutrality order, those issues can step from on-deck to the batter’s box."

"It is definitely the case that the FCC has fallen behind. On the other hand, it was simply not possible for the FCC to proceed without settling the question of legal authority and the related question of network neutrality,” said Public Knowledge Legal Director Harold Feld. “As long as that was hanging out there, it was all anyone wanted to focus on. Hopefully, the agency will be able to move along more rapidly now that it has issued an order.” Feld questioned why Republicans in Congress seem bent on continuing the fight over net neutrality rules. “Those frustrated that the FCC has not had the capacity to focus on other issues should consider the value of moving on and letting the inevitable litigation take its course,” he said.

Feld said other factors beyond the push to pass a net neutrality order have slowed progress on the commission’s agenda. Work on the D-block order was stopped in its tracks by the opposition of Sen. Jay Rockefeller, D-W.Va., chairman of the Commerce Committee, Feld said. “Similarly, the failure of the FCC to move from an NOI to an NPRM on AllVid appears related to the steady stream of MVPDs and major studios that have applied non-stop pressure in recent months than to any difficulty in getting the chairman’s office to focus on the item."

"The FCC’s intense and controversial focus on preventing a potential net neutrality problem has seriously degraded the FCC’s bandwidth to address all the real and long-festering policy problems that FCC has the authority and consensus to address,” said Scott Cleland, chairman of Netcompetition.org. “I am convinced the net neutrality diversion will be seen as a big mistake,” said Free State Foundation President Randolph May. “In any event, the commission ought to now focus like a laser on meaningful spectrum and USF policy reform. And it ought to do it in a way that is distinctly market-oriented."

In some areas, industry officials say they're pleased the FCC hasn’t followed its timetable. Public safety officials who oppose a commercial auction of the 700 MHz D-block told us they hope the FCC will wait for Congress to act. “We're in no hurry, if FCC action means making a big mistake,” one official said. “I am disappointed that more progress was not made in this Congress but have high hopes that there will be much support on all of the public safety communications fronts,” said Charles Werner, chief of the Charlottesville, Va., Fire Department.

"As far as the electric utilities are concerned, we're in no hurry for this National Broadband Plan to be implemented,” Keller and Heckman partner Tom Magee said. The broadband plan called for an order and further rulemaking notice by the end of the second quarter of 2010, but Magee said the commission’s proposals are “astounding” and “one-sided.” “It looks to us like a wish-list from communications companies,” Magee said.

Power companies are taking a higher profile at the commission over pole attachments and smart grid (CD Oct 4 p2), but Magee said he and his colleagues “have their work cut out for them.” The commission’s “interest in promoting broadband, as we saw in the National Broadband Plan, has perhaps blinded them to the difficult realities of a complex electrical distribution system,” Magee said. “It’s not as easy as [the] shot clock for wireless tower sites.”