Red Flags on the Horizon

The FCC has pledged to roll out proposals
monthly over the foreseeable
future as it implements most of the
100 action items for the commission
in the National Broadband Plan. Here
are some proposals that have raised
eyebrows—and blood pressure.

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.
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