NVCA Today

In March, NVCA wrote a letter to Federal Communications Commission Chairman Genachowski thanking him for his work on advancing significant broadband access throughout the United States. The FCC's national broadband plan has called for freeing up an additional 500 megahertz of wireless broadband spectrum over 10 years, and reallocating more than a third of TV airwaves to wireless Internet service providers. We pointed out that virtually everything our industry invests in has a broadband component, and that the Commission should structure a plan which makes new spectrum available for wireless broadband, increases the adoption of broadband nationwide, and assists citizens in coordinating with government to help move our country out of the economic downturn.

Since then, the FCC suffered a setback when a Federal court ruled that the Commission lacked the authority to regulate telecommunication companies' interference with customers' communications over the Internet. The U.S. Court of Appeals for the District of Columbia Circuit held that the FCC overstepped its bounds in August 2008 by issuing an order against Comcast Corp., which the commission justified with ancillary authority derived from the Communications Act. A three-judge panel upheld Comcast's challenge to the FCC's action against the company for interrupting service to customers who used high-bandwidth application BitTorrent. Comcast argued there was no legal basis for taking the action.

Without that authority, the FCC will not be able to enforce net neutrality, a concept that was central to the broadband plan, and one that the FCC argues is vital to fostering innovation and consumer protection. Genachowski acknowledged that the court decision could make it trickier to implement some parts of the plan, but he refused to tip his hand on his strategy for strengthening the FCC's legal authority, and has stated that the commission is reviewing the issue. According to the FCC General Counsel, the court decision “may affect a significant number of important Plan recommendations. Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy.”

Currently, broadband is categorized as a Title I service at the FCC, meaning that the Commission has less authority to regulate the practices and competitiveness of the broadband market. Many net neutrality groups and online businesses, including Skype, Amazon, and Netflix are arguing that broadband should now be re-categorized as a Title II service, placing it alongside phone service as a utility of key importance. In early May, Genachowski announced that he was launching a proceeding to reclassify some aspects of broadband as a telecommunication service under Title II of the Communications Act. Broadband is now treated as an information service under Title I. The re-categorization could remove the obstacles now facing the broadband plan, but would likely create an onslaught of legal battles and congressional obstacles.

On the other side, telephone and cable companies are arguing that they should be unregulated and free to deliver broadband service as they wish until a new law is written. The agency anticipates that 120 MHz could be relinquished by TV broadcasters, who would receive some of the proceeds from auctioning their airwaves, although Genachowski has predicted that a large majority of broadcasters would decline the offer to give up frequencies. Despite language in the broadband plan allowing the FCC to impose steps to force broadcasters to turn over frequencies, Genachowski insisted reallocation would be voluntary choice.

Another option moving forward is the possibility of congressional action to shore up FCC authority. Democratic Senators have urged the Chairman to move forward with the broadband agenda. Senator Rockefeller (D- W. VA), who chairs the Committee on Science, Commerce, and Transportation, promised congressional action to provide "a new framework" for broadband issues. However, at the Committee hearing, Republican Senators warned Genachowski against a “power grab” and argued that a light regulatory touch has allowed broadband to flourish.

The House has taken some legislative action. In April, the House passed a bill (H.R. 3125) requiring the FCC and the Commerce Department to inventory and map use of the nation’s airwaves, with the goal of identifying unused spectrum for wireless broadband use. The agencies were also asked to recommend which underused blocks spectrum should be reallocated for commercial use or be available for spectrum-sharing with commercial users.