Focus on Broadband Left FCC Less Time for Some Routine Matters

The significant time devoted by many FCC staffers to work on the National Broadband Plan the past year, and the commission’s attention to the subject, cut into the time and energy available for more routine matters, said broadcast and cable lawyers. That leaves some items languishing, causing some licensees regulatory confusion and leaving complaints unresolved, they said. “While the task Congress assigned to the FCC was enormous, all of the effort and energy the commission put into creating the plan will reap many benefits in the years to come,” said an agency spokesman.

The decision to write a plan covering many subjects seems partly made by FCC Chairman Julius Genachowski and Omnibus Broadband Initiative Executive Director Blair Levin, because the legislation requiring the document didn’t precisely define its scope, former regulators said. All the former chairmen, commissioners and staffers we surveyed said the report is unprecedented in scope and the amount of work that went into it. Also without precedent, they said, was the multiweek public rollout of portions of the plan which included more than a dozen events.

"I do not believe Congress mandated that the FCC develop a report of the magnitude/significance that the NBP promises to be,” said Wiley Rein attorney Henry Rivera, a Democratic FCC member in the 1980s. “Rather, I believe the NBP will be of such magnitude/significance because broadband is the centerpiece of the chairman’s agenda for the commission.” Genachowski and Levin “have been working on broadband since they began working on the transition team,” so it’s “little wonder that the plan is going to be so significant to the allocation and utilization of the commission’s human and fiscal resources going forward,” Rivera added.

"In my time I never saw something that went so far beyond ... the agency’s ability to execute” on its own, Michael Powell, a Republican chairman in the last decade, said of the legislation. The plan is also is “far outside” the commission’s jurisdiction, he said. “There’s a strong amount of goodwill in the commission and in the industry and in the government -- I certainly support the idea. But as soon as you break it down into pieces ... they will attract ardent supporters and ardent critics. The real test will be are those done well.”

The plan “provides clear recommendations for resolving many key issues that have vexed the FCC in the past,” the commission spokesman said. It will let the regulator “focus on one of the most important tasks it has: Transforming communications so that broadband can go to work for all citizens and the broader economy,” he added. “The process has been transparent from start to finish, from the many public workshops and hearings, to the briefings, speeches and blogs as March 17 approached that have enabled further public discussion and understanding of the many far-reaching recommendations in the plan."

But meanwhile, a waiver to let subscription-TV providers pass along encrypted HD movies to customers, action on several radio licensing issues, a pole attachment proceeding and several children’s TV matters are among the issues awaiting FCC action, said lawyers and others we surveyed. Many of those items were pending before Congress last year passed the American Recovery and Reinvestment Act, requiring an FCC report on broadband. The commission probably would have given them more attention or dispensed them if not for the overarching attention to the plan, some attorneys said.

"This is what they were hoping for -- this is what they got,” Reed Hundt, a Democratic chairman in the 1990s under whom Genachowski and Levin worked, said of the plan. “I don’t see an issue.” Its long-lasting rollout has been a way to start a conversation and “a conversation is exactly what we want to see” with those regulated by the commission, their investors and consumers, he said. “To know exactly what’s at stake, you can’t do that with one-shot publication.” Disclosure of the plan has been like publication of a serial, Hundt said.

Work by the Media Bureau on a selectable output control order seemed to slow down because the commission was busy with broadband, said several communications attorneys. But now it seems “back at the top of the pile,” said a media industry executive. And the plan has brought attention to matters including the Universal Service Fund and intercarrier compensation that might not have gotten it otherwise, the executive said. A telecom executive couldn’t think of any items affecting that person’s work that remained pending because of work on the plan.

Broadcast attorneys found plenty that’s not getting action as quickly as they would like. “The main issue the FCC has thus far overlooked is the need for regulatory relief for broadcast stations,” said Robert Rini of Rini Coran, which represents radio and TV stations. “So much attention has been placed on the role of broadband in delivering video services in particular that not enough attention has been paid to help make broadcast a viable business."

What’s called the radio-rescue petition from the Minority Media and Telecommunications Council is among the radio items that haven’t gotten the attention that lawyer Harry Cole of Fletcher Heald said he had expected. Other issues include FM translators’ relationship with low-power stations in their band, so “a substantial number of translator applications still pending from the last window years ago remain in limbo,” he said. It’s “frustrating to see the overwhelming number of NBP items which have flowed out of the commission over the last six months, as opposed to the precious few media-related items."

For children’s advocates, inaction on banning interactive-TV ads and on challenges to license renewals based on contentions that TV stations didn’t meet their educational obligations is frustrating, said National Policy Director Jeff McIntyre of Children Now: “After a while, we begin to understand that we are not a priority.” Genachowski’s comments Friday promoting media and Internet literacy for kids (CD March 15 p5) are promising but that area of inquiry is not a “panacea,” McIntyre said. “A concern in the kids community is there are going to be issues in broadband that are not going to be addressed by kids’ media literacy."

The Recovery Act charged the commission with developing a plan for broadband deployment to the underserved and for other “national purposes,” said Barbara Esbin of the Progress and Freedom Foundation. (See page 402 of http://xrl.us/bgymwn.) “That last part of the charge has been interpreted very broadly by the FCC, with the result that we are about to see the FCC chairman issue an extremely wide-ranging plan, of a magnitude well beyond anything the FCC has engaged in before,” said Esbin, who worked at the commission for more than a decade. For Ken Robinson, a top aide to Al Sikes, the Republican chairman 1989-1993, “one of my worries about the whole thing is that this will turn into an analog of the Obamacare -- a big complicated plan that no one understands that costs billions,” he said. “It hasn’t."

"The multiweek roll out of what is and is not contained in the plan is unusual -- it has the feel of a full-blown media campaign,” said Esbin. If that spurs interest in broadband use, it’s understandable, she said. Others think it has opened up the work. “It highlights some new transparency that portions of the plan are being discussed and made available to the public,” said Gloria Tristani of Arent Fox, who was a Democratic commissioner. “It really is helpful not just to practitioners but to the public at large to start hearing about this before they get this 100 or 500 page document.”

Some are annoyed that the commissioners are voting on a mission statement, not the plan. “That’s unprecedented, just the amount of effort that has gone into it, to have that amount of effort and not to have a staff vote, that’s kind of puzzling,” said Harold Furchtgott-Roth, a former FCC Republican commissioner. He’s “flabergasted” and doesn’t “see how you can devote substantial resources to it and not even have a vote on it.” Others weren’t concerned. “Commissioners will sit on the bench and certainly have an opportunity to express their views, and I am sure they will issue statements about it” at Tuesday’s meeting, said Powell. “I don’t get too hung up about whether they actually vote it or not."

Starting Tuesday, Genachowski cedes some control over the plan, because the commissioners will need to vote on parts of it to put them into action and legislation by Congress and help from business will be needed, said former commissioners. The multiweek publicity campaign leading up to the vote helped keep the plan under his control, they said. “You love when you have a report,” Powell said. “You have a lot more control over its coherency, its direction.” The test will be how it “gets picked up by Congress, Cabinet agencies, by companies that need to fund this infrastructure,” he said. Robinson said he wonders what Congress is going to do” with the report. “These topics are so complicated.”