The FCC’s Best-Laid Plans
Implementing the commission’s National Broadband Plan raises more questions than answers
By John Eggerton -- Broadcasting & Cable, 3/22/2010 6:18:51 AM
Content protection. While the Motion Picture Association of America was praising the plan's recognition that protecting copyrighted content is important, this language in the plan, applauded by Public Knowledge, bears watching: "[C]opyright protection efforts must not stifle innovation; overburden lawful uses of copyrighted works; or compromise consumers' privacy rights." That could be a bone to fair-use fans; much depends on how the FCC defines "overburden."
Spectrum-reclamation plan. The FCC says its plan to reclaim 120 MHz of broadcast spectrum is voluntary and will be targeted at only some stations in urban areas. But it also talks about getting 36 MHz of spectrum by changing the rules on the separation between stations and "repacking" the band. That would mean reducing broadcasters' allocation by 36 MHz, or six channels of spectrum. An FCC spokesman tells B&C this repacking would not happen until after spectrum was voluntarily turned in by broadcasters. Another FCC source, however, says that this was a change from the initial wording in the plan that would have started with getting those six channels back-a move that was not voluntary.
Spectrum fees. The FCC is proposing spectrum fees as a way to encourage broadcasters and others to give up some of their turf.
Internet taxes. "The federal government should investigate establishing a national framework for digital goods and services taxation," reads the plan. That could be good if it preempts a patchwork of state and local taxes, but bad if federal preemption means additional taxes. As one ad industry lobbyist put it: "You can be nibbled to death by piranhas or squeezed to death by a python."
Title II reclassification. Commissioner Robert McDowell said he was concerned that the plan "opened the door" to classifying broadband as "old-fashioned monopoly-era, circuitswitched, voice telephone services under Title II of the Communications Act." That would make ISPs subject to common-carrier-style mandatory access regulations. The plan does not say it will assert that authority, but says it will "consider these and related questions" as implementation proceeds.
The plan's “ta-daaa!” factor had already died the death of a thousand working recommendation previews over the previous several weeks. With no action items to get the lobbyist blogosphere humming with dire warnings—and given how tough it is to lobby against making kids’ backpacks lighter (Kindles instead of 25 pounds of textbooks) or saving billions on health care—the sky-is-falling response was held to a minimum. In fact, the overwhelming reaction from industry and activist groups alike was at least modest applause for the effort and pledges to work together on solutions.
The next step for the FCC will be to start proposing rules to implement the plan; these will likely come monthly and far into the future. This also means it will be months before any movement occurs. Those rules require comments and reply comments, and—in this FCC—workshops and public hearings and blogging and crowd sourcing. “We expect a steady stream of rulemakings will flow directly from the proposals in the plan, possibly backed up by legislation enhancing the commission’s auction authority,” says Michael Calabrese of the New America Foundation, which backs such FCC activism.
LOOK BEFORE YOU LEAP
Since this was a report to Congress, both houses must weigh in as well, and the relevant House and Senate committees were not letting any grass grow under their feet. The first two hearings are scheduled for March 23 in both the House and Senate. Broadcasting fan Rep. John Dingell (D-Mich.), who has warned against forcing broadcasters off their spectrum—the FCC plan is billed as voluntary in that regard— said last week that the commission should not “leap haphazardly into implementation of the plan.”
The FCC says it can handle more than half of the recommendations in the plan on its own authority. The majority of the remainder are directions to various government agencies and suggested action items for Congress.
For broadcasters, the plan requires trying to figure out how quickly—and how “voluntarily”—the government plans to take back 120 megahertz of its spectrum (broadcasters occupy a little north of 290 MHz, having already given back 108 MHzplus in the DTV transition). The FCC will need that spectrum, since it anticipates paying for some of the plan’s recommendations through billions in auction proceeds. For cable operators, just how much the government may subsidize competition to its existing services or provide regulatory disincentives to investment will be the devils in the details.
Media Access Project President Andrew Schwartzman thinks the wireless companies will be the big winners down the road “if the commission succeeds in diverting substantial amounts of spectrum to broadband,” and cable carriers will benefit from the adoption side if more folks can be sold on the value of broadband service.
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