Uncommon Wisdom

Jul 22 2010   12:55PM GMT

FCC broadband report claims regulation authority; will court follow?

Tom Nolle Tom Nolle Profile: Tom Nolle

The FCC released another broadband report, and while this one is replete with arcane FCC jargon and not easily followed, it’s a pretty revolutionary change. The jist of the report is that the FCC concludes that broadband services are not being provided to “all Americans” as Section 706 of the Telecom Act mandates. That finding has never been made before.

The FCC then says it intends to follow the path Section 706 dictates: “take immediate action to accelerate deployment of [advanced telecommunications] capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.” The action the FCC proposes to take is to implement the National Broadband Plan.

In many respects, the move here is almost rhetorical; the National Broadband Plan has already been declared the FCC’s policy. What’s different here is that the FCC has invoked its 706 authority, which includes “utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.”

In other words, what the FCC has done here is to explicitly create the regulatory framework for intervening in telecom policy as necessary (“consistent with the public interest, convenience, and necessity”) to assure universal broadband.

Prior to this report, meaning absent a finding that access to advanced telecommunications services was not available to all Americans, the FCC had no legal way of doing much beyond what’s already been done. Now, as the quote from Section 706 shows, it has very substantial latitude. Obviously the FCC intends to exercise is authority, but just as obviously, there’s going to be a lot of opposition.

Virtually all network operators and virtually all Republicans oppose this viewpoint. Reading (or trying to read) past the rhetoric, the dispute is whether the language of the Telecom Act — which says that the Commission must determine whether “advanced services are being deployed” means that those services are in the process of deployment or that they are in fact being used.

We think a previous reference makes it clear that the goal is not “progress” but a realization, and obviously it would be difficult to say that there was a problem at any point in broadband deployment if only progress were required. Mustn’t success come at some point? In any event, this is going to end up in federal court, but we think the FCC just might win it.

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  • TomLiotta
    A number of years ago, I put myself on a waiting list for DSL from my ISP. When DSL was available at my location, the ISP would notify me. A couple years later, our phone company notified us that we could get DSL through them. A quick check with my ISP showed still no availability through them, so we signed up with the telco's offer. Another couple years go by and I finally get notified by my ISP (which had become secondary for me by then) that DSL was now ready from them for me. So, I got in touch them and went over the details. It turned out that their offer was actually in conjunction with the cable company that serviced much of the region rather than over phone lines. I informed them that the cable company did not offer service in my neighborhood. (They still don't.) My TV service is a satellite provider. They asserted that their maps showed that we were served and that phone DSL couldn't be provided for my home. I informed them back that I already had DSL via phone for a couple of years and was just looking to get everything back under their name. The final result was simply that they insisted that phone DSL wasn't possible for me and that cable access was what I was eligible for. I left my setup as it was and still is. I get along fine with phone DSL and I access my ISP (my web site, my files, whatever) via the web, FTP, etc. I can imagine that lots of other people could benefit from some kind of overall regulation. Even major service providers seem not to know what other providers are doing. Information sharing about physical networks seems to be a mess.
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