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On Broadband: At the Beginning of a Cycle, a Low-Controversy Federal Communications Commission

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WASHINGTON, December 16, 2013 – Last Thursday’s testimony, by the full group of Federal Communications Commissioners at the House Energy and Commerce Committee, restores the pulse of the nation’s technology and communications policy issues to a “low-tension” state.

We’ve seen this perennial cycle before: first, an issue stirs immense conflict among the agency’s five members. Next, that issue incites intervention by the agency’s congressional overseers. Extensive inter-industry lobbying follows, generally resulting in a pre-emptive rule-making by a majority of FCC commissioners. Soon enough, the five-year term of one or more members of the FCC expires. The tension with Congress is too high for the President and/or the Senate to nominate and confirm a new commissioner. Thus ensures – most of the time – a long period of near-dormancy by the agency. Finally, the tension is broken, mew commissioners are confirmed, and balance in the universe is once again restored.

This has played out dramatically in recent years. Here are a few examples the teleco-political conflict cycle:

  • The triennial review of competition under the 1996 Telecommunications Act. It incited full-scale war between the long-distance provider AT&T (who lost) and the Baby Bells (who won);
  • Divisive mandates — ultimately killed — that would have required technology companies to stymie potential copyright thievery;
  • Cable networks and broadcasters duking out the details in the transition to digital television, with an upper hand by big cable;
  • Network neutrality mandates, pitting Google and internet search giants and the broadband barons, a battle is still in court;
  • The need to address a perceived shortfall in the nation’s broadband capacity, an issue still simmering in the marketplace and in the legislature.

As we’re in a new beginning of the “low-tension” state, it’s hard to find any issue of this caliber perplexing the FCC. However, last week’s testimony by the full group of five commissioners – complete with the newly-confirmed Chairman Tom Wheeler, and new commissioner Mike O’Reilly – offers a handful of sleeper issues that might ultimately break out of the box and become an issue of unusual conflict through the next telecommunications policy cycle.

Broadcast Television Spectrum Incentive Auction in 2015

One of Chairman Wheeler’s first actions at the agency has been to do what many thought was inevitable: pushing the next-phase auction of broadband television spectrum to mid-2015 from 2014. Called for in the Middle Class Tax Relief and Job Creation Act of 2012, this auction is a natural progression from the world in which we once received television broadcasts over the air, and took telephone calls tethered to wires. Now, we largely watch television over cable wires, and make calls through wireless cell phones.

Of course, we do a lot more through wireless services. Wireless data to smart phones are increasingly responsible for the television-viewing habits of the next generation. Often dubbed “millennials,” this group has no concept of traditional “over the air” television. Ironically enough, however, much of their video consumption is over third-generation or fourth-generation wireless networks.

All of this usage of video and data via mobile broadband highlights the increasing need to entice, cajole, and insist that broadband television stations yield up their most precious asset — wireless frequencies– to a cellular and technology company that will actually do something useful with that spectrum.

After significant auctions of wireless frequencies once used by broadcasters over the past half-decade, the FCC’s National Broadband Plan in 2010 called for an even more aggressive approach: an auction in which broadcasts can offer up their spectrum for purchase by wireless companies. The once wildly-controversial has become sanely sensible. At last Thursday’s hearing, it was hard to detect any unsettled opposition to this from the agency’s commissioners. That may change as we progress toward the auction’s details over the next 18 months.

Continuing Toward a Universal Broadband Fund

The steps toward a Connect America Fund, and a Mobility Fund, continue at the FCC. Coupled with the June 2013 announcement of the new ConnectED program, for ensuring high-speed broadband connections for educational institutions, we now have a complete revision of the traditional Universal Service Fund programs. These past two years’ changes to this recurring USF, funded by fees on telephone bills, are still working their way through an interim stage. And, with the announcement earlier this month that nearly 30 percent of the funds allocated for traditional telecommunications carriers are in question, there’s a lot of room for uncertainty that may escalate toward greater conflict in the program.

Is the Internet Protocol Transition About IP Services?

Following the hearing on Capitol Hill, the commissioners returned to their agency’s home in the Southwest part of the city for its monthly meeting. It included items on improving 911 reliability, beginning the process to allow mobile data services on aircraft, and the agency’s proposal to ensure mobile phone unlocking. These issues are in the mature phase of the telecommunications policy life-cycle. One issue discussed at the agency’s meeting that appears to be in the beginning phases of development is the so-called transition to internal protocol services.

Transition to IP services? Hasn’t this been going on for some time? Naturally. Hence, the IP transition issue isn’t about new services — it’s about cutting off the public-switched telephone network, and how soon that can be done without upsetting the communications needs of late-adopters. Look for much more controversy as this issue develops. It even become a signature issue if telecommunications legislation begins to get traction in the new year.

Drew Clark is Publisher of BroadbandBreakfast.com and tracks the development of Gigabit Networks, broadband usage, the universal service fund, and wireless spectrum policy at http://twitter.com/broadbandcensus. Nationally recognized for his knowledge on telecommunications law and policy, Clark brings experts and practitioners together to advance the benefits provided by broadband: job creation, telemedicine, online learning, public safety, the smart grid, eGovernment, and family connectedness. Clark is also available on Google+ and Twitter.

Drew Clark is the Chairman of the Broadband Breakfast Club. He tracks the development of Gigabit Networks, broadband's impact, and the universal service fund @BroadbandCensus. He is also Of Counsel with the firm of Best Best & Krieger LLP. The articles and posts on BroadbandBreakfast.com and affiliated social media, including LinkedIN, are not legal advice or legal services, do not constitute the creation of an attorney-client privilege, and represent the views of their respective authors.

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