Just days after a federal court dealt the Federal Communications Commission a major blow to its legal authority to set rules for how ISPs manage their networks, the FCC is pressing ahead with its plan on national broadband -- a plan some worry might suffer in the fallout of the court decision.
In its 2010 agenda for implementing the recommendations of the national broadband plan that it delivered to Congress last month, the FCC said that it expects to tackle issues like spectrum reform, a federal subsidy for broadband service and competition policy in short order.
FCC Chairman Julius Genachowski also downplayed the impact on the broadband plan of the court's ruling -- which voided the FCC's 2008 order censuring cable giant Comcast for throttling peer-to-peer traffic on its network.
"The court decision earlier this week does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals," Genachowski said in a statement. "The court did not question the FCC's goals -- it merely invalidated one technical, legal mechanism for broadband policy chosen by prior commissions."
However, the commission's top attorney, Austin Schlick, gave the ruling a little more weight, saying that it "undermines the legal approach the FCC adopted in 2005 to fulfill its statutory duty of being the cop-on-the-beat for 21st century communications networks."
Like the chairman, Schlick pointed out that the court's decision will not affect the FCC's ability to act on most of the recommendations in the broadband plan, though in other areas, such as consumer protection and cybersecurity, he admitted that the commission's legal authority is less clear.
Net neutrality, the policy issue at play in the Comcast case, was not included in the broadband plan, though the FCC is currently accepting reply comments on a rulemaking procedure that would expand and enshrine the policy statement used against the cable company as a set of binding rules. In light of the court's ruling, the FCC extended the submission deadline for the current round of comments to April 26.
Wireless spectrum again in the spotlight
While the FCC's course of action on the open Internet proceeding remains far from clear, it has an ambitious agenda for the rest of the year as it gears up to tackle the broadband plan.
This year the commission expects to begin work on its spectrum proposals, which would aim to reallocate 500 MHz from TV broadcasters and other parties to wireless providers for mobile broadband networks over the next 10 years. The plan set a goal of reallocating 300 MHz of spectrum by 2015, with the first auctions to come next year.
To undertake the rulemaking proceedings required to set the process in motion, the FCC's statutory authority is clear.
"The FCC had already committed to this for pushing out spectrum for wireless broadband, and after this week's court ruling challenging the FCC's broadband jurisdiction, it's good to push ahead with action where it has clear authority," Rebecca Arbogast, an analyst with Stifel Nicolaus, wrote in a research note.
Where it would need congressional approval is its plan to establish "incentive auctions," which would return a portion of the proceeds to the broadcasters who agreed to give up their spectrum.
The National Association of Broadcasters, the chief industry lobby, is worried that the reallocation program won't be voluntary at all, and is planning a campaign to oppose any efforts to force its members to give up their spectrum licenses. The group also called attention to recent comments from Ivan Seidenberg, the CEO of Verizon Communications, who criticized the FCC's spectrum approach when asked about it at an event hosted by the Council on Foreign Relations earlier this week.
"My reaction is going to surprise you. I don't think the FCC should tinker with this. I think the market's going to settle this," Seidenberg said, arguing that cable companies, the archrivals of Verizon and other firms in the telecom sector, have large swaths of spectrum that has been lying fallow for at least a decade.
Legislation in the House and Senate that appears to have a good chance of passing this year would require the government agencies that manage spectrum to conduct an inventory of the current allocations and levels of usage, which would aim to settle arguments among competing sectors that are determined either to acquire more spectrum or hold onto the allotments they have.
FCC Chief of Staff Edward Lazarus called Seidenberg's comments "rather baffling," citing several filings from Verizon Wireless, a joint venture of Verizon Communications and Vodafone, making the case to the FCC that mobile broadband providers will need considerable amounts of additional spectrum in the near future as consumers increasingly use their smartphones for data-intensive applications.
Aside from spectrum, the FCC is also planning to begin work shifting the Universal Service Fund, the federal subsidy that funds wireline telephone service for low-income and rural Americans, to broadband.
The FCC is also looking to upgrade the federal E-Rate program, which supports broadband access in schools and public libraries.
In the area of competition, the FCC is planning to move on a proposal to explore the special access market, which determine the rates providers pay for access to competitors' data networks for middle-mile transmission, and open a proceeding into the shared-access rules that determine the extent to which providers must make their infrastructure available to other carriers.
The commission is also aiming to establish the framework for a nationwide, interoperable communications network for first responders, a long-simmering public-safety recommendation that was included in the 9/11 Commission report.