Industry Attorneys Expect Sped-Up BEAD and Loss of FCC Authority
Industry attorneys expect USF reform and think BEAD efforts will soon speed up, they said in a webinar Thursday hosted by Incompas CEO Chip Pickering. The panel also discussed convergence between wired and wireless broadband and the movement of power away from the FCC in the wake of recent U.S. Supreme Court rulings against agency authority. “From Incompas’ perspective ... we think a lot will shift to Congress, to the administration and to the states,” said Pickering.
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Nelson Mullins attorney John Heitmann said the question of whether the FCC has the authority to impose monetary forfeitures will be among the bigger matters in the communications industry to watch through the rest of 2025. Cooley’s Tamar Finn said its authority in the wake of the death of Chevron deference is also an open question, and the courts “might not let [FCC Chairman Brendan Carr] do everything he wants to.” Pickering pointed out that “after two and a half decades of FCC primacy, now there is this new equilibrium or balance. What does that mean, and how do we advocate effectively?”
The panelists said they expect that further guidance from NTIA on BEAD will speed up the program. Heitmann said that guidance could come in June, since he doesn’t believe NTIA will wait for the confirmation of administrator nominee Arielle Roth. After being vocal during the presidential election about a lack of action on BEAD, the current administration is unlikely to give Democrats the chance to play the same card, Heitmann said. “I think you’re going to see some sort of hybrid approach that allows some speed and some rethinking.” Finn said there's “an increasing cry for this guidance and to get the states moving again.” Morgan Lewis attorney Patricia Cave said that for states that have already completed most of the preparation process for BEAD, “I don't think there's an appetite for them to have to go back and start from the beginning.”
The attorneys said the FCC likely needs to take up USF and Rural Digital Opportunity Fund reform, and SCOTUS is unlikely to rule against the USF funding mechanism in the pending Consumers' Research case. Cave said she doubts that proposals floated by Carr about expanding the USF payor base “would have legs moving into the future,” while Finn said she hopes for a bipartisan solution from Congress on USF contribution reform.
The panelists said they expect wired and wireless industry consolidation under the current administration, and the two industries are converging into one. Heitmann said that “when you're looking at markets, it's easy to say that the communications market is not this silo, this silo and this silo -- it's becoming blended.” Finn and Cave said that at some point, antitrust authorities will have to look at whether wired and wireless residential broadband are a single market.