Red Flags on the Horizon

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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.
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.

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