Updated on July 22nd, 2010
C-3PO: “Curse my metal body, I wasn’t fast enough, it’s all my fault!” Star Wars (1977).
In its Sixth Broadband Deployment Report (“Sixth Report”), the FCC concludes that “broadband deployment to all Americans is not reasonable and timely.” (Sixth Report at para. 2 (emphasis in original).) However, the FCC doesn’t attempt to answer the question titling this blog post. To the contrary, the Sixth Report “emphasize[s] that [its] conclusion in no way diminishes the achievements industry has made deploying better and faster forms of broadband to most Americans, nor the Commission’s past efforts to foster broadband deployment.” (Report at para. 6.) The FCC can say that, but that doesn’t make it true. Somebody’s always at fault.
In this case, it’s the FCC that must shoulder the blame – because it hasn’t acted in a timely manner in its efforts to reform the Universal Service Fund. And Universal Service Funding (or some other method of subsidy) is the only way to achieve universal broadband service (the goal articulated by the FCC in the Sixth Report.) (See my earlier post on the Sixth Report here.) Efforts to fundamentally reform the Universal Service Fund have been ongoing for years, but have failed in the face of intense lobbying by rural carriers that benefit disproportionately from the status quo. The Report’s finding that the status quo isn’t good enough may finally give the FCC the political cover it feels is necessary to take responsibility for the Universal Service Fund and enact real reform. Otherwise, there’s little point in the Sixth Report’s conclusion regarding the “reasonable and timely” deployment of broadband to consumers that cannot be economically served by industry.
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broadband Broadband Deployment Report FCC
Updated on July 22nd, 2010
Milton Waddams: “I was told that I could listen to the radio at a reasonable volume from nine to eleven, I told Bill that if Sandra is going to listen to her headphones while she’s filing then I should be able to listen to the radio while I’m collating so I don’t see why I should have to turn down the radio because I enjoy listening at a reasonable volume from nine to eleven.” Office Space (1999).
Section 706 of the Communications Act requires the FCC to annually “determine whether advanced telecommunications capability [i.e., broadband] is being deployed to all Americans in a reasonable and timely fashion.” In its last 5 reports, the FCC has concluded that broadband was being deployed in a reasonable and timely fashion. Now, in its Sixth Broadband Deployment Report (“Sixth Report”), the FCC has concluded that “broadband deployment to all Americans is not reasonable and timely.” (Sixth Report at para. 2 (emphasis in original).) Read the rest of this entry »
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broadband Broadband Deployment Report FCC
Updated on April 28th, 2010
Hank Hultquist at AT&T and Harold Feld at Public Knowledge recently had an exchange debating the application of Title II to wireline Internet access service providers. But this discussion, while interesting from a wireline perspective, didn’t shed any light on the historical application of Title II to wireless broadband access – probably because Title II has never applied to wireless broadband Internet access – either the service itself or the underlying transport. Read the rest of this entry »
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broadband Net Neutrality
Updated on March 16th, 2010
The FCC released its National Broadband Plan today. Given the scope and breadth of this unprecedented plan, it would be impossible to cover it all in a single post. For now, I discuss only my initial reaction.
The broadband team should be commended for its hard work in putting the plan together. I can’t help being impressed by the extensive data and vast number of recommendations made in the plan. It appears to be comprehensive in its scope and ambitious in its agenda. Read the rest of this entry »
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broadband FCC National Broadband Plan roaming spectrum
Updated on January 11th, 2010
“The Force is what gives a Jedi his power.” Obi-Wan Kenobi, Star Wars (1977).
The FCC derives its power from Congress. For an FCC rule to have the force of law, it must fall within the scope of the authority Congress has delegated to the FCC. (See American Library Ass’n v. FCC, 406 F.3d 689, 691 (D.C. Cir. 2005).) One problem with the FCC’s proposed net neutrality rules is that they attempt to exercise more power than Congress has given the agency. Although it’s been a long time since I’ve indulged in a jurisdictional analysis, I’ll do my best below to explain why the FCC lacks jurisdiction to enact its proposed rules.
In the net neutrality NPRM, the FCC indicates its intention to rely on its “ancillary jurisdiction” to impose net neutrality rules on broadband Internet access service providers. (NPRM at paragraphs 83-87.) To exercise ancillary jurisdiction, the subject of the regulation must be reasonably ancillary to the effective performance of the Commission’s various responsibilities for “something.” (See Comcast Network Management Practices Order at paragraph 15.) In the Comcast Network Management Practices Order, the FCC found jurisdictional “somethings” in sections 1, 201, 230(b), 256, 257, and 601(4) of the Communications Act as well as section 706 of the Telecommunications Act of 1996. In the NPRM, the Commission adds Title III generally to the mix of potential statutory “somethings” underpinning its ancillary authority. Read the rest of this entry »
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broadband Comcast FCC Net Neutrality Network Management NPRM Wireless Mobile Broadband