Broadband Plan Goals May Not Be Met on Time, Powell Says

The FCC may not be able to turn the National Broadband Plan into action as fast as the report to Congress envisions, former FCC Chairman Michael Powell warned in an interview. Congress may never act on some recommendations, and it could revise others, said Powell, who co-chairs the industry advocacy group Broadband for America. The FCC’s part depends on completing long and “messy” rulemaking proceedings “that may or may not come out the way that is envisioned,” he said. Powell also sought a targeted revamp of the Telecom Act.

The 1996 Act “is completely dated with regard to what’s happening in the marketplace,” Powell said. “The statute is absolutely not about the Internet,” and “everything” in the telecom industry now is. That gap has turned the judicial branch into “almost a full-fledged partner in telecom policy, and it shouldn’t be,” he said. “And the person who’s missing is Congress.” Verizon recently sought an overhaul, and House Communications Subcommittee Chairman Rick Boucher, D-Va., said he intends to work on a telecom law revamp in the next Congress starting in January (CD March 25 p1). Powell said Congress doesn’t need a brand new Act but should make “targeted” revisions: “You don’t have to completely … scrap it."

While the broadband plan is an “extraordinarily useful compendium of research that will spur conversation, it’s “just a document,” Powell said. “In some ways it’s not even fair to call it a national plan because it consists of so many separate elements and pieces that really must be … executed by completely different elements of both the government and the private market,” he said. “Will all of those pieces move in lock step together with the same common conclusions that are in the plan? I think that’s unlikely.” Powell previously raised concerns about the FCC’s ability to act, speaking before the plan was released (CD March 16 p6).

Having the plan in the record could, but won’t necessarily, speed the FCC rulemaking process, he said. Major rulemakings “rarely” conclude in less than a year, and a USF overhaul may take more than two, he said. “I suspect you'll see them try to schedule proceedings faster” with shorter comment periods, he said. “In my experience, when the rubber hits the road and it’s really time to decide what to do on special access, it gets a hell of a lot messier.” Some recommendations could delay decisions, he added. The plan’s discussion on competition pricing policy finds the record is inconclusive on the right approach, and says more data is needed, he said. “If you say that, that becomes a predicate that you must overcome to move to something.”

The plan is somewhat “murky” as a record document since it wasn’t approved by the full commission, and may not hold up to court review, he said. The FCC made a “sincere effort” to incorporate a diverse array of ideas, but it’s not “post-partisan,” he said. Some of the document suggests a more “left-leaning” perspective on the role of government, for example, he said. The commission will “enjoy the benefits of being at 50,000 feet for a while, but not much longer,” he said. “At some point, this stuff starts to come to the ground, and … there will be millions of battles over the thing the minute it starts to become a tradeoff."

Powell doubts the FCC can meet the plan’s spectrum goals in the time frame it lays out, he told us. “Good luck even getting the Congress to even change the law in less than a year.” On the plan’s proposal for TV spectrum, Powell said the FCC “came up close to the water, but didn’t quite drink,” he said. “I personally have a hard time seeing on a voluntary basis how you're able to get coherent blocks of spectrum, sufficiently unencumbered” and “refarm them” for broadband. It also depends on Congress “changing in a pretty huge way their approach to auctions,” which could prove “super complicated,” he said. It will be even tougher to get spectrum from the Defense Department, he said. “Absent some really high-level, extraordinary, serious, almost White House-level push, that process takes years and years."

Powell said he understands the FCC’s desire to get the D-Block out into the market, given the agency’s struggles to give the spectrum to public safety before. But the FCC shouldn’t bar major carriers from participating in the auction, he said. With public safety conditions, the D-Block is not “a great start-up opportunity."

The plan hasn’t made it “any easier” to revamp the Universal Service Fund, but it’s good to “start the journey,” Powell said. People agree broadband is important and USF is in need of an overhaul, but few agree on how to fix it, he said. “There is no way to do it without people getting gored,” he said. “Someone who’s got something today is going to have to lose it.” He noted the changing makeup of Congress, with Republican Ted Stevens of Alaska gone and Sen. Bryon Dorgan, D-N.D., leaving after this Congress.

Powell agrees with Rep. Rick Boucher, D-Va., that legislation is needed to revamp USF. Congressional intervention on USF is required because “there’s a whole mess of definitional issues” in the Telecom Act, Powell said. “Trying to stick round holes in square holes is going to prove complex, litigious [and] confusing.” Shifting $1 billion-2 billion of USF money to broadband would be an “utterly silly” reason to reclassify broadband Internet services under the FCC’s Title II authority, considering estimates of $300 billion to upgrade U.S. broadband service, he said. “If that’s really your problem, just get Congress to change who’s eligible.”