The National Broadband Plan

Congressional research reportJul 9, 2010

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-name redactedSpecialist in Science and Technology Policy

-name redactedSpecialist in Telecommunications Policy

-name redactedLegislative Attorney

July 9, 2010

Congressional Research Service

7-....

www.crs.gov

R41324

CRS Report for Congress

Prepared for Members and Committees of Congress

The National Broadband Plan

Summary

On March 16, 2010, the Federal Communications Commission (FCC) released Connecting

America: The National Broadband Plan. Mandated by the American Recovery and Reinvestment

Act of 2009 (ARRA, P.L. 111-5), the FCC’s National Broadband Plan (NBP) is a 360-page

document composed of 17 chapters containing 208 specific recommendations directed to the

FCC, to the Executive Branch (both to individual agencies and to Administration as a whole), to

Congress, and to nonfederal and nongovernmental entities. The ARRA specified that the NBP

should “seek to ensure that all people of the United States have access to broadband capability.”

The NBP identified significant gaps in broadband availability and adoption in the United States.

In order to address these gaps and other challenges, the NBP set six specific goals to be achieved

by the year 2020. These six goals are discussed further in this report, and an outline of the NBP is

provided at the end of this report.

It is important to note that many aspects of telecommunications policies, regulations, and legal

issues would be affected by the NBP. For example:

•

The Universal Service Fund (USF) is a fund that was created to provide universal

availability and affordability of communications throughout the United States;

the issue is whether or how the universal service concept should embrace access

to broadband as one of its policy objectives.

•

Because wireless broadband can play a key role in the deployment of broadband

services, the NBP extensively addresses spectrum policy and the issue of how to

make more spectrum available and usable for mobile broadband applications.

•

Issues such as intercarrier compensation and set-top boxes are identified by the

NBP as having potential significant impact on broadband availability and

adoption.

•

Broadband will likely play a role in addressing critical national challenges in

areas such as health care, education, energy, environment, and public safety; the

issue is how, for each national purpose, the existing legislative and regulatory

framework and trends in the field might best benefit from better broadband

access and services.

•

Finally, one potential issue the FCC may face in its attempts to achieve NBP

goals is the scope of the agency’s authority to regulate broadband Internet access

and management.

A major issue for Congress will be how to shape the Plan’s various initiatives when and if they go

forward, either through oversight, through consideration of specific legislation, or in the context

of comprehensive telecommunications reform. A key challenge for Congressional policymakers

will be to assess whether an appropriate balance is maintained between the public and private

sectors, and the extent to which government intervention in the broadband marketplace would

help or hinder private sector investment and competition.

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Contents

Background ...................................................................................................................................... 1

Overview of Plan ............................................................................................................................. 2

Goals to Create a “High-Performance America” ....................................................................... 2

Recommendations ..................................................................................................................... 4

Implementation .......................................................................................................................... 5

Broadband Adoption and Availability and the Federal Universal Service Fund ............................. 6

The Evolution of the Universal Service Concept ...................................................................... 6

Universal Service and Broadband ............................................................................................. 7

The National Broadband Plan and the USF............................................................................... 8

The Connect America and Mobility Funds ......................................................................... 8

Low Income Program .......................................................................................................... 9

Schools and Libraries and Rural Health Programs ............................................................. 9

Funding ............................................................................................................................... 9

Reform of Intercarrier Compensation ............................................................................................ 10

Fostering a Market for Set-Top Boxes ........................................................................................... 11

Spectrum Policies for Wireless Broadband.................................................................................... 14

Spectrum Assignment .............................................................................................................. 15

Television Broadcast Spectrum ......................................................................................... 16

D Block ............................................................................................................................. 17

Wireless Backhaul ................................................................................................................... 18

Technology and Spectrum Management ................................................................................. 18

New Technologies ............................................................................................................. 19

New Policies...................................................................................................................... 19

National Purposes .......................................................................................................................... 21

Meeting Policy Goals .............................................................................................................. 22

The FCC’s Authority to Implement the National Broadband Plan ................................................ 23

Towards a National Broadband Policy? ......................................................................................... 28

Tables

Table 1. Outline of National Broadband Plan ................................................................................ 30

Table 2. Recommendations of the National Broadband Plan to Congress .................................... 32

Contacts

Author Contact Information........................................................................................................... 34

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Background

Signed into law on February 17, 2009, Section 6001(k) of the American Recovery and

Reinvestment Act of 2009 (ARRA, P.L. 111-5) mandated the Federal Communications

Commission (FCC) to prepare a report containing a national broadband plan. The impetus behind

mandating a national broadband plan was derived from the widely accepted view in Congress of

broadband as a critical public infrastructure, increasingly important to the nation’s economic

development. Broadband was also viewed as playing an increasingly critical role in addressing

specific challenges facing the nation in areas such as health care, energy, education, public safety,

and others.

In the United States, broadband infrastructure is constructed, operated, and maintained primarily

by the private sector, including telephone, cable, satellite, wireless, and other information

technology companies. Although broadband is primarily deployed by private sector providers,

federal and state regulation of the telecommunications industry, as well as government financial

assistance programs, can have a significant impact on private sector decisions to invest in and

deploy broadband infrastructure, particularly in underserved and unserved areas of the nation.

When considering broadband policy, the ongoing challenge for Congressional policymakers is

how to strike a balance between providing federal assistance for unserved and underserved areas

where the private sector may not be providing acceptable levels of broadband service, while at the

same time minimizing any deleterious effects that government intervention in the marketplace

may have on competition and private sector investment.

The ARRA specified that the national broadband plan “shall seek to ensure that all people of the

United States have access to broadband capability and shall establish benchmarks for meeting

that goal,” and that the plan should include:

•

an analysis of the most effective and efficient mechanisms for ensuring

broadband access by all people of the United States;

•

a detailed strategy for achieving affordability of such service and maximum

utilization of broadband infrastructure and service by the public;

•

an evaluation of the status of deployment of broadband service, including

progress of projects supported by the grants made pursuant to this section; and

•

a plan for use of broadband infrastructure and services in advancing consumer

welfare, civic participation, public safety and homeland security, community

development, health care delivery, energy independence and efficiency,

education, worker training, private sector investment, entrepreneurial activity, job

creation and economic growth, and other national purposes.

Starting in the summer of 2009, an FCC task force embarked on a massive information gathering

effort consisting of 36 public workshops, 9 field hearings, 31 public notices producing 75,000

pages of public comments, and 131 online blog postings triggering almost 1,500 comments.1

Federal Communications Commission, News Release, “FCC Sends National Broadband Plan to Congress,” March 16,

2010, p. 2, available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296880A1.pdf.

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The National Broadband Plan

On March 16, 2010, the FCC publically released its report, Connecting America: The National

Broadband Plan.2 As mandated by the ARRA, the report was formally submitted to the House

Committee on Energy and Commerce and the Senate Committee on Commerce, Science, and

Transportation. At the March 16, 2010 Open Commission Meeting, the FCC Commissioners

voted to approve a Broadband Mission Statement containing goals for a U.S. broadband policy.

However, the FCC Commissioners did not vote on whether to approve the plan itself.

Overview of Plan3

The FCC’s National Broadband Plan (NBP) is a 360-page document composed of 17 chapters

containing 208 specific recommendations. Table 1, at the end of this report, is an outline of the

National Broadband Plan. Connecting America: The National Broadband Plan begins with an

introduction, a statement of goals, and a discussion of the current state of the broadband

“ecosystem.” This is followed by three parts containing the bulk of the plan’s recommendations:

Part I, “Innovation and Investment,” Part II, “Inclusion,” and Part III, “National Purposes.” The

NBP concludes with a chapter on implementation and benchmarks.

Goals to Create a “High-Performance America”

The NBP seeks to “create a high-performance America” which the FCC defines as “a more

productive, creative, efficient America in which affordable broadband is available everywhere

and everyone has the means and skills to use valuable broadband applications.”4 In order to

achieve this mission, the NBP recommends that the country set six goals for 2020:

•

Goal No. 1: At least 100 million U.S. homes should have affordable access to

actual download speeds of at least 100 megabits per second and actual

upload speeds of at least 50 megabits per second. Speeds of 100 Mbps in 100

million homes (popularly referred to as “100 squared”) would constitute nextgeneration broadband5 in most U.S. households. As a milestone, the FCC has set

an interim goal of 100 million homes with actual download speeds of 50 Mbps

and actual upload speeds of 20 Mbps by 2015. The FCC notes that existing

providers are in the process of upgrading their networks, and it is likely that 90%

of the country will have access to advertised peak download speeds of more than

50 Mbps by 2013.6

•

Goal No. 2: The United States should lead the world in mobile innovation,

with the fastest and most extensive wireless networks of any nation.

According to November 2009 data from American Roamer, 3G wireless service

Available at http://www.broadband.gov/plan/.

Prepared by (name redacted), Specialist in Science and Technology Policy.

Federal Communications Commission, Connecting America: The National Broadband Plan, March 17, 2010, p. 9.

A distinction is often made between “current generation” and “next generation” broadband (commonly referred to as

next generation networks or NGN). “Current generation” typically refers to currently deployed cable, DSL, and many

wireless systems, while “next generation” refers to dramatically faster download and upload speeds offered by fiber

technologies and also potentially by future generations of cable, DSL, and wireless technologies.

According to the FCC, “the affordability and actual performance of these networks will depend on many factors such

as usage patterns, investment in infrastructure, and service take-up rates.” See Connecting America, p. 21.

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covers roughly 60% of U.S. land mass.7 Approximately 77% of the U.S.

population live in an area served by three or more 3G service providers, 12% live

in an area served by two, 9% live in an area served by one, and about 2% live in

an area with no provider.8 The FCC currently has 50 MHz of spectrum that it can

assign for broadband use. The NBP recommends making 500 MHz of spectrum

available for broadband by 2020, with an interim benchmark of 300 MHz by

2015.

•

Goal No. 3: Every American should have affordable access to robust

broadband service, and the means and skills to subscribe if they so choose.

There are two aspects to the goal of universal broadband: availability and

adoption. Regarding broadband availability, 290 million Americans—95% of the

U.S. population—currently live in housing units with access to terrestrial, fixed

broadband infrastructure capable of supporting actual download speeds of at least

4 Mbps. This leaves a “gap” of 14 million people in the United States living in 7

million housing units that do not have access to terrestrial broadband

infrastructure capable of this speed.9 The FCC has estimated that $24 billion in

additional funding would be necessary to fill what it refers to as the “broadband

availability gap.”10 Regarding broadband adoption, the NBP sets an adoption

goal of “higher than 90%” by 2020. Currently, broadband adoption stands at

67%, about two-thirds of the adult population. Certain demographic groups

exhibit significantly lower rates of broadband adoption, for example: 40% of

adults making less than $20,000 per year have adopted terrestrial broadband at

home, 50% of adults in rural areas, 24% of those with less than a high school

degree, 35% of those older than 65, 59% of African Americans, 49% of

Hispanics, 42% of people with disabilities, and fewer than 10% of residents on

Tribal lands.11

•

Goal No. 4: Every American community should have affordable access to at

least 1 gigabit per second broadband service to anchor institutions such as

schools, hospitals and government buildings. The NBP notes that while 99% of

all health care locations with physicians have access to an actual download speed

of at least 4 Mbps, and while 97% of schools are connected to the Internet (many

supported by the federal E-rate program), more than 50% of teachers say slow or

unreliable Internet access presents obstacles to their use of technology in

classrooms, and only 71% of rural health clinics have access to mass-market

broadband solutions. Further, many business locations, schools and hospitals

often have connectivity requirements that cannot be met by mass-market DSL,

cable modems, satellite or wireless providers, and must buy dedicated high-

Connecting America: The National Broadband Plan, p. 22.

According to the FCC, “these measures likely overstate the coverage actually experienced by consumers, since

American Roamer reports advertised coverage as reported by many carriers who all use different definitions of

coverage. In addition, these measures do not take into account other factors such as signal strength, bitrate or inbuilding coverage, and may convey a false sense of consistency across geographic areas and service providers.” See

Connecting America: The National Broadband Plan, p. 22.

Connecting America: The National Broadband Plan, p. 20.

Ibid., p. 136.

Ibid., p. 23.

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capacity circuits such as T-1 or Gigabit Ethernet service. The availability and

price of such circuits vary greatly across different geographies.12

•

Goal No. 5: To ensure the safety of the American people, every first

responder should have access to a nationwide, wireless, interoperable

broadband public safety network. Nearly nine years after 9/11, first responders

from different jurisdictions and agencies still often cannot communicate with

each other during emergencies and continue to operate outdated communications

systems, most of which do not have broadband capability.13

•

Goal No. 6: To ensure that America leads in the clean energy economy, every

American should be able to use broadband to track and manage their realtime energy consumption. According to the FCC, “broadband and advanced

communications infrastructure will play an important role in achieving national

goals of energy independence and efficiency.”14

Recommendations

Chapters 4 through 17 constitute the heart of the National Broadband Plan and contain 208

specific recommendations intended to help achieve the Plan’s goals. The NBP’s recommendations

are directed to the FCC, to the Executive Branch (both to individual agencies and to

Administration as a whole), to Congress, and to nonfederal and nongovernmental entities. Table

2 (at the end of this report) provides a listing of recommendations specifically directed to

Congress.

The NBP is categorized into three parts:

•

Part I (Innovation and Investment) which “discusses recommendations to

maximize innovation, investment and consumer welfare, primarily through

competition. It then recommends more efficient allocation and management of

assets government controls or influences.”15 The recommendations address a

number of issues, including: spectrum policy, improved broadband data

collection, broadband performance standards and disclosure, special access rates,

interconnection, privacy and cybersecurity, child online safety, poles and rightsof-way, research and experimentation (R&E) tax credits, R&D funding.

•

Part II (Inclusion) which “makes recommendations to promote inclusion—to

ensure that all Americans have access to the opportunities broadband can

provide.”16 Issues include: reforming the Universal Service Fund, intercarrier

compensation, federal assistance for broadband in Tribal lands, expanding

existing broadband grant and loan programs at the Rural Utilities Service, enable

greater broadband connectivity in anchor institutions, and improved broadband

adoption and utilization especially among disadvantaged and vulnerable

populations.

Ibid., p. 20.

Ibid., p. 313.

Ibid., p. 265.

Ibid., p. 11.

Ibid.

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•

Part III (National Purposes) which “makes recommendations to maximize the

use of broadband to address national priorities. This includes reforming laws,

policies and incentives to maximize the benefits of broadband in areas where

government plays a significant role.”17 National purposes include: health care,

education, energy and the environment, government performance, civic

engagement, and public safety. Issues include: telehealth and health information

technology, online learning and modernizing educational broadband

infrastructure, digital literacy and job training, smart grid and smart buildings,

federal support for broadband in small businesses, telework within the federal

government, cybersecurity and protection of critical broadband infrastructure,

next generation 911 networks and emergency alert systems.

Implementation

The NBP discusses an implementation strategy intended to carry out the recommendations. First,

because many of the recommendations are directed towards the Executive Branch, the NBP

recommends the creation of an interagency Broadband Strategy Council to coordinate

implementation of the NBP. Second, given that approximately half the recommendations are

directed to the FCC, the NBP calls on the FCC to quickly publish a timetable or proceedings to

implement those NBP recommendations that fall under FCC authority. On April 8, 2010, the FCC

released a Broadband Action Agenda explaining the purpose and timing of more than 60

rulemakings and other notice-and-comment proceedings.18

Additionally, Congress is seen as playing a major role in implementing the National Broadband

Plan, both by considering legislation to implement NBP recommendations, and by overseeing

(and possibly funding) broadband activities conducted by the FCC and Executive Branch

agencies.

As telecommunications technologies increasingly converge onto a broadband platform, many of

the issues traditionally regarded as part of “telecommunications policy” are becoming viewed as

part of “broadband policy.” Accordingly, the NBP addresses many of the ongoing major

telecommunications policy issues, such as the reform and reorientation of the Universal Service

Fund, reform of intercarrier compensation, the possible mandating of “gateway” set-top boxes,

spectrum and wireless policy, and the appropriate regulatory framework for an evolving

information infrastructure. Some of these issues will likely be addressed in subsequent FCC

proceedings, and all may be debated and considered by Congress.

Ibid.

FCC, Broadband Action Agenda, available at http://www.broadband.gov/plan/broadband-action-agenda.html.

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Broadband Adoption and Availability and the

Federal Universal Service Fund19

The NBP states that “Everyone in the United States today should have access to broadband

services supporting a basic set of applications that include sending and receiving e-mail,

downloading web pages, photos and video, and using simple video conferencing.”20 A

universalization target of 4 Mbps of actual download speed and 1 Mbps of actual upload speed

has been set as the initial target rate for public investment to ensure that these expectations will be

met. The NBP calls upon the Federal Universal Service Fund (USF) to undertake a major role to

ensure that this goal is achieved.

The Evolution of the Universal Service Concept

Since its creation in 1934 the Federal Communications Commission has been tasked with “...

mak[ing] available, so far as possible, to all the people of the United States,... a rapid, efficient,

Nation-wide, and world-wide wire and radio communications service with adequate facilities at

reasonable charges....”21 This mandate led to the development of what has become known as the

universal service concept. The universal service concept, as originally designed, called for the

establishment of policies to ensure that telecommunications services are available to all

Americans, including those in rural, insular, and high cost areas, by ensuring that rates remain

affordable.

The term universal service, when applied to telecommunications, refers to the ability to make

available a basket of telecommunications services to the public, across the nation, at a reasonable

price. Over time, access to the public switched network through a single wireline connection,

enabling voice service, became the standard of communications. Currently the basic universal

service package, which was established in 1997, is comprised of:

•

voice grade access to and some usage of the public switched network;

•

single line service;

•

dual tone signaling;

•

access to directory assistance;

•

emergency service such as 911;

•

operator services;

•

access and interexchange (long distance) service.

Since the U.S. household telephone connection rate is 95.6% of homes, an all-time high, some

might say that the program has been a success and nothing more needs to be done.22 The

Prepared by (name redacted), Specialist in Telecommunications Policy.

Connecting America: The National Broadband Plan, Chapter 8, p.135.

Communications Act of 1934, as amended, title I sec.1 [47 U.S.C. 151].

Telephone Subscribership in the United States, Federal Communications Commission. Released February 2010.

Table 1, p. 7. Data as of November 2009.

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universal service concept, however, is an evolving one, and consequently so are universal service

policies and goals. The initial focus of universal service support targeted eligible

telecommunications carriers usually serving rural, insular, or other high cost areas by providing

funds to help offset higher than average costs of providing telephone service (e.g., the High-Cost

Program). Changes in expectations by policymakers and consumers have led to an expansion of

universal service programs as well as to the establishment of a Federal USF to administer them.23

For example, the passage of the Telecommunications Act of 1996 (P.L. 104-104) codified the

universal service concept and expanded the concept to include, among other principles, that

elementary and secondary schools and classrooms, libraries, and rural health care providers have

access to telecommunications services for specific purposes at discounted rates as well as access

to advanced telecommunications and information services.24 This led to the establishment by the

FCC of the Schools and Libraries and the Rural Health Care Programs. Earlier policy decisions

by the FCC led to the development, in the mid-1980s, of a needs based Low-Income Program to

assist economically needy individuals to join and remain on the telecommunications network.25

Universal Service and Broadband

Over the past decade the telecommunications sector has undergone a vast transformation fueled

in particular by the deployment of and access to broadband infrastructure and applications. One

of the challenges facing this transition is the desire to ensure that all consumers have access to an

affordable and advanced broadband infrastructure so that all members of society may derive its

social and economic benefits. Broadband adoption rates are estimated at 67%, representing about

two-thirds of the adult population, but these rates are uneven and significant gaps exist.26 For

example, those who: live in rural areas, have low education and income levels, have disabilities,

are elderly, are African Americans, are Hispanics, and are living on Tribal lands all have

significantly lower broadband adoption rates than the national average. Furthermore,

approximately 5% of the U.S. population, equivalent to 14 million people living in 7 million

housing units, do not have access to terrestrial broadband infrastructure capable of supporting the

NBP’s recommended 4 Mbps actual download speed.27

One of the major policy debates surrounding universal service policy is whether the universal

service concept should embrace access to broadband as one of its policy objectives. The 1934

Communications Act, as amended, does take into consideration the changing nature of the

telecommunications sector and allows for the mix of services eligible for universal service

support to be modified. In particular, provisions in the universal service section state that

“universal service is an evolving level of telecommunications services” and the FCC is tasked

with “periodically” reevaluating this definition “taking into account advances in

telecommunications and information technologies and services.”28

The Federal USF provides support and discounts for providers and subscribers through four programs: the High-Cost

Program, the Low-Income Program, the Schools and Libraries Program; and the Rural Health Care Program.

See sections 254(b)(6) and 254(h) of the 1996 Telecommunications Act, incorporated in to the Communications Act

of 1934, 47 U.S.C. 254.

For a further discussion of the programs, funding, and policy issues relating to universal service see CRS Report

RL33979, Universal Service Fund: Background and Options for Reform, by (name redacted).

Connecting America: The National Broadband Plan, p. 23.

Ibid., p. 20.

Section 254(c) of the 1996 Telecommunications Act, incorporated into the Communications Act of 1934, 47 U.S.C.

(continued...)

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There is a growing consensus among policymakers that the FCC should change the mix of

services eligible for universal service support to include the universal availability of broadband

services and use federal universal service funds to help eliminate broadband adoption and

availability gaps.29 The FCC’s NBP recommends that access to and adoption of broadband be a

national goal and has proposed that the USF be restructured to become a vehicle to help reach this

goal.

The National Broadband Plan and the USF

The USF will be a key component in this transition as the NBP would reorient its programs to

address the deployment, affordability, and connectivity of broadband. To enable the USF to take

on this role the NBP calls for the USF to be transformed, in three stages over a ten-year period,

from a mechanism that largely supports voice telephone service to one that supports the

deployment, adoption, and utilization of broadband.30

The Connect America and Mobility Funds

The NBP calls on the existing High Cost program to transition from one that supports voice

communications to one that supports a broadband platform that enables multiple applications,

including voice. The NBP recommends that the High Cost program be phased out and replaced in

stages, over the next ten years, to directly support high-capacity broadband networks through

newly created Connect America and Mobility Funds.31

The Connect America Fund (CAF) would be the major vehicle to ensure the universal availability

of affordable broadband by addressing the gaps in broadband deployment and adoption. The NBP

adopts a new expanded USF definition embracing affordable broadband with at least 4 Mbps

actual download speed and 1 Mbps of actual upload speed. Examples of the applications that

could be supported by such a download speed include: advanced Web-browsing; e-mail; Voice

over the Internet Protocol (VOIP); multimedia; streamed audio; streamed video lectures; and

lower definition telemedicine.32

The NBP also calls for the USF to move from a largely fixed model to incorporate a mobile

model. A Mobility Fund (MF) would be created to target funding to ensure that all states achieve

the national average for 3G wireless coverage for both voice and data. The MF would provide

one-time support for deployment of 3G networks.

(...continued)

254.

Some, however, have cautioned that a more modest approach is appropriate given the “universal mandate” associated

with this definition, the uncertainty and costs associated with mandating nationwide deployment, and the stress

currently facing the USF.

For a more detailed analysis of the transition of the USF to accommodate the inclusion of broadband and the

implementation and funding of the USF provisions contained in the NBP see CRS Report RL33979, Universal Service

Fund: Background and Options for Reform, by (name redacted).

Much of this transition is detailed in Chapter 8, Availability, of the NBP.

It would not support high definition video or high definition video conferencing.

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Low Income Program

According to an FCC conducted broadband consumer survey, 36% of non-adopters of broadband

cite a financial reason as the main reason they do not have broadband at home.33 To address this

barrier the NBP recommends that the existing Low Income Program (Lifeline and Link Up) be

expanded to address low broadband access levels in low-income households.34 The NBP also

calls for the integration of Federal Low Income programs with state and local efforts as well as

the establishment of pilot programs to gain information to help develop a future full-scale low

income program for broadband.

Schools and Libraries and Rural Health Programs

Included in the national purposes stated in the NBP are those that address the role of broadband in

the delivery of education and health care. The USF has two programs: the Schools and Libraries

Program (also known as the E-rate program); and the Rural Health Care Program, which address

the telecommunications needs of eligible schools, libraries, and rural health care providers

respectively. The NBP contains almost a dozen recommendations to modernize and improve the

Schools and Libraries program.35 These recommendations focus on three goals: improve

flexibility, deployment, and use of infrastructure; improve program efficiency; and foster

innovation. Included among the recommendations are those that: raise the yearly funding cap to

account for inflation; set minimum broadband connectivity rates; and expand support for internal

connections.

Citing the importance of health care to the lives of consumers and its importance to the national

economy the NBP also calls for the reform of the USF’s Rural Health Care program. The major

focus of the reform calls for the restructuring and expansion of its program components.36

Included among the recommendations to modify the program are those that: expand eligibility to

include urban as well as rural providers based on need; increase subsidy support beyond the

current 25%; expand the definition for eligibility to include certain for-profit entities; replace the

existing Internet Access Fund with a Health Care Broadband Access Fund; simplify the

application process; and establish a Health Care Broadband Infrastructure Fund.

Funding

While the NBP calls for a major restructuring of the USF, it recommends that the funding level be

maintained close to its current size (in 2010 dollars). The NBP recommends that $15.5 billion be

shifted, through selected reforms, over the next decade from the existing USF High Cost program

to support the transition to broadband.37 However, the NBP also recommends that if Congress

wishes to accelerate this transition it could allocate to the CAF additional general funds of “... a

few billion dollars a year over a two or three year period.”38 Additional comments regarding

funding include a recommendation that the USF contribution base be broadened, that the

Connecting America: The National Broadband Plan, Chapter 9, p. 165.

See ibid., Chapter 9, Adoption and Utilization, for details on this expansion.

See ibid., Chapter 11, Education, for a detailed discussion of these recommendations.

See ibid., Chapter 10, Health Care, for a detailed discussion of these recommendations.

Ibid., Chapter 8, Recommendation 8.6.

Ibid., Chapter 8, Recommendation 8.15.

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contribution methodology rules be revised to ensure sustainability, and acknowledgement of the

potential negative impact that increasing USF funding rates may have on consumers.39

Reform of Intercarrier Compensation40

Most telephone calls and other electronic communications travel over more than one carrier’s

network to get from the originating (or calling) party to the terminating (or receiving) party, thus

requiring the facilities of an originating network, a terminating network, and perhaps one or more

intermediate networks. Intercarrier compensation (ICC) is the system of rates that service

providers are charged for the use of these networks to provide service to their subscribers.

There is a monopoly element to terminating a communication. Once the receiving party has

chosen her local carrier (say Verizon or Comcast or, in a rural area, the local rural telephone

company), the originating party’s carrier has no choice but to pay the rate charged by the

terminating carrier to complete the communication. Therefore these rates are subject to price

regulation—the FCC regulates interstate rates and state public utility commissions regulate

intrastate rates.

Intercarrier compensation rates have developed over time in an ad hoc fashion, and often were set

to help foster a particular policy objective. For example, both the FCC and state regulatory

commissions purposely set the rates for terminating long distance calls to subscribers of rural

telephone companies significantly above cost in order to provide those rural carriers with a large

revenue source that would allow them to keep local rates low. As a result, the revenues generated

from intercarrier compensation charges imposed on long distance carriers represent

approximately 25% of total rural telephone carrier revenues, but only approximately 10% of the

revenues of other local telephone companies.41 As another example of regulators setting

intercarrier compensation rates to help meet a public policy objective, the FCC purposely has

treated Internet Service Provider (ISP)-bound traffic differently from other traffic, not imposing

termination charges on ISP-bound traffic or setting lower rates for terminating ISP-bound traffic

than other traffic, in order to foster the development of Internet services.

Although the use of a terminating network’s facilities is similar for each type of communication,

the rate charged for terminating a communication ranges from zero to 35.9 cents a minute42

depending on the jurisdiction of the communication,43 the type of traffic carried,44 and the

regulatory status of the terminating carrier.45

Ibid., Chapter 8, Recommendations 8.10 and 8.12.

Prepared by (name redacted), Specialist in Teleco

mmunications Policy. For a detailed discussion of issues

relating to intercarrier compensation, including how it has developed historically and the market incentives created

under alternative intercarrier compensation schemes, see CRS Report RL32889, Intercarrier Compensation:

One Component of Telecom Reform, by (name redacted).

These figures were cited by the FCC in In the Matter of Developing a Unified Intercarrier Compensation Regime,

Further Notice of Proposed Rulemaking, adopted February 10, 2005, and released March 3, 2005, at para. 107. These

percentages probably have fallen since then as the minutes of long distance traffic have fallen substantially in the past

six years, but access charges still represent a far larger portion of rural telephone company revenues than urban

telephone company revenues.

Connecting America: The National Broadband Plan, p. 142 and footnote 42, citing a letter submitted by AT&T.

For example, whether a wireline call is interstate or intrastate, or whether a wireless call crosses Metropolitan

Trading Area (MTA) boundaries.

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These regulatory-mandated distinctions create inefficient market signals that, in addition to

imposing artificial advantages or disadvantages on certain categories of services or providers,46

are skewing investment decisions, in some cases perhaps retarding the migration from legacy

circuit-switched voice networks to Internet protocol (IP) broadband networks.

At the same time, these artificially high termination charges generate revenues that may be

needed for rural companies to be able to offer basic telephone service at affordable rates

comparable to those for urban subscribers. These high charges represent an implicit universal

service subsidy imposed on long distance users. Intercarrier compensation reform that eliminates

this implicit subsidy by moving terminating access rates toward cost may have to be accompanied

by the creation of new sources of explicit universal service funding.

The Broadband Plan proposes that “the FCC should adopt a framework for long-term intercarrier

compensation reform that creates a glide path to eliminate per-minute charges while providing

carriers an opportunity for adequate cost recovery.”47 Changes would be transitioned in over ten

years, starting with reductions in the highest intercarrier compensation rates, which generally are

intrastate rates.

Since the federal courts have ruled that the FCC does not have authority over intrastate rates,

however, legislation may be needed to give the FCC explicit authority to reform intrastate

intercarrier rates as well as interstate rates.

Fostering a Market for Set-Top Boxes

Universal access to broadband networks is not an end in itself; it is a means to give consumers

access to the applications that are provided over those networks. Consumers need devices—

computers, smart phones, set-top boxes—to reach both their broadband network and the

applications riding over the network. Those devices help consumers navigate to the many

applications. Today, consumers can turn to many different manufacturers and retailers of

computers and smart phones, but they generally have few options for set-top boxes (or, more

broadly, for smart video devices). Virtually all such devices are provided by the consumer’s

multichannel video programming distributor (MVPD—cable or satellite video service provider).

Section 629(a) of the Communications Act48 directs the Federal Communications Commission

(FCC),

(...continued)

For example, whether it is interexchange (long distance) traffic, local exchange (local) traffic, or ISP-bound traffic.

For example, whether the terminating carrier is an incumbent wireline carrier subject to rate of return regulation, an

incumbent wireline carrier subject to price cap regulation, a competitive wireline carrier, or a wireless carrier.

For example, some service providers have created “free” teleconference services by having end users call in to a

telephone number in the service area of a rural telephone company that has very high terminating access charges. The

caller’s long distance carrier must pay the high per minute terminating access charges to the rural telephone company

and that rural telephone company in turn shares those revenues with the service provider. The terminating access

charges are so high that both the rural telephone company and the teleconference service provider can profit. But the

end users’ long distance carriers end up bearing the costs for the “free” teleconference service.

Connecting America: The National Broadband Plan, p. 148.

47 U.S.C. § 549(a).

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in consultation with appropriate industry standard-setting organizations, [to] adopt

regulations to assure the commercial availability ... of converter boxes, interactive

communications equipment, and other equipment used by consumers to access multichannel

video programming [cable or satellite video service].

There is a consensus that FCC and industry efforts to date have not achieved this goal. There are

few devices available in the retail market; these devices cannot work with all MVPDs and, even

where compatible, cannot be used to identify many video signals, particularly those of highdefinition cable offerings.

In its NBP, the FCC concluded that access to video services drives broadband usage and thus

actions that would foster a market for smart video devices that make it easier for consumers to

access broadband-enabled video would increase consumer adoption of broadband.49 The FCC

therefore adopted a Notice of Inquiry on April 21, 2010,50 to explore the feasibility of:

•

developing a nationally supported standard interface that is common across all

MVPDs, thus allowing independent equipment manufacturers to produce smart

video devices that could be used by end users without regard to their choice of

MVPD, and

•

requiring each MVPD to develop a complying adapter or gateway that would

allow end users to purchase in a retail market smart video devices capable of

searching for all available video options—from their MVPD, from the Internet,

etc.—in one place.

As envisioned by the FCC:

•

The smart video devices could be used with the services of any MVPD and

without the need to coordinate or negotiate with MVPDs.

•

The adapter or gateway would communicate with the MVPD service, performing

the tuning and security decryption functions specific to a particular MVPD.

•

The smart video devices would perform navigation functions, including

presentation of programming guides and search functionality.

The envisioned “AllVid” solution would employ a nationwide interoperability standard analogous

to how Ethernet and the IEEE industry standards have led to nationwide interoperability for

customer data networks despite broadband service providers deploying differing proprietary

network technologies.

Critics of this gateway concept argue that the cable industry already has spent almost $1 billion

attempting to implement the FCC’s earlier, unsuccessful efforts to create a market for video

devices and that there is no demonstrated consumer demand for these set-top boxes. They claim

that most consumers would prefer to lease set-top boxes that might become obsolete in an

environment characterized by rapid product and service innovation. The additional expenditures

Connecting America: The National Broadband Plan, pp. 49-52.

Federal Communications Commission, In the Matter of Video Device Competition; Implementation of Section 304 of

the Telecommunications Act of 1996; Commercial Availability of Navigation Devices; Compatibility Between Cable

Systems and Consumer Electronics Equipment, MB Docket No. 10-91, CS Docket No. 97-80, and PP Docket No. 0067, Notice of Inquiry, adopted and released on April 21, 2010.

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to construct the adapter, they claim, would be passed through to consumers in higher MVPD

rates. The critics further contend that technological change inherently outpaces any government

rule or one-size-fits-all requirement. They also question whether households that do not currently

subscribe to broadband service would be motivated to do so simply because they had access to

smart video devices that provide them with greater, but perhaps more complicated, access to

video services. The critics suggest that the AllVid mandate would primarily serve tech-savvy

individuals who already subscribe to broadband service.

Proponents of the AllVid solution respond that, in the absence of standards and an interoperability

requirement, there have been no incentives for MVPDs, manufacturers, and consumers to

cooperate. They claim that consumer demand for smart video devices and manufacturer

incentives to produce such devices have been constrained by the lack of a universal standard that

would allow a single device to serve all MVPDs and by MVPD resistance to a device that would

make it easier for consumers to access non-MVPD sources of video. They claim simple to use

smart video devices would appeal particularly to non-tech savvy households. They dispute that

the AllVid solution would constrain MVPD innovation or consumer choice by prescribing a

single technical solution. Rather, they claim, it would foster innovation and choice by developing

an industry-wide interoperability standard open to independent equipment manufacturers and

applications providers without placing restrictions on MVPD networks.

The FCC recognizes that it may be especially challenging to develop an adapter for satellite video

providers because, unlike in cable networks where the intelligence resides deep in the network at

the head-end, in satellite networks the intelligence resides in the set-top box at the customer

premise. It therefore might be more difficult for the satellite company to troubleshoot whether the

source of a customer complaint lies in equipment under the control of the satellite operator or in

the smart video device.

One NBP recommendation is that the FCC initiate a proceeding to ensure that all MVPDs install

a gateway device or equivalent functionality in all new subscriber homes and in all homes

requiring replacement set-top boxes by December 31, 2012.51 Many observers question whether

the technical and market challenges to accomplish this can be performed in that period of time.

An AllVid solution will not be available for several years. Currently, CableCARD technology—

which only works for cable, not for satellite—is available to separate the system that customers

use to gain access to video programming (called the conditional element) from the device

customers use to navigate the programming. This allows independent smart video device

manufacturers, such as TiVo, to serve end users, but there are problems with the technology,

notably, it does not allow customers to receive certain high-definition cable channels. The FCC

therefore has adopted a Notice of Proposed Rulemaking to expeditiously address some of the

current problems with cableCARDs.52

Connecting America: The National Broadband Plan, Recommendation 4.12.

Federal Communications Commission, In the Matter of Implementation of Section 304 of the Telecommunications

Act of 1996; Commercial Availability of Navigation Devices; Compatibility Between Cable Systems and Consumer

Electronics Equipment, CS Docket No. 97-80 and PP Docket No. 00-67, Fourth Further Notice of Proposed

Rulemaking, adopted and released on April 21, 2010.

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Spectrum Policies for Wireless Broadband53

Wireless broadband54 plays a key role in the deployment of broadband services. Because of the

importance of wireless connectivity, radio frequency spectrum policy is deemed by the NBP to be

a critical factor in successful planning for a national policy. Mobile broadband provides highspeed Internet connectivity on the move. Other wireless technologies complement needed

infrastructure for a host of national broadband goals for education, health, energy efficiency,

public safety, and other social benefits. Mobile and fixed wireless broadband communications,

with their rich array of services and content, require new spectrum capacity to accommodate

growth. Although radio frequency spectrum is abundant, usable spectrum is limited by the

constraints of technology and the cost of investment.55

The NBP proposes to increase spectrum capacity by:

•

Making more spectrum licenses available for mobile broadband.

•

Increasing the amount of spectrum available for shared use.

•

Encouraging and supporting the development of spectrum-efficient technologies,

particularly those that facilitate sharing spectrum bands.

•

Instituting new policies for spectrum management, such as assessing fees on

some spectrum licenses.

To facilitate the deployment of broadband in rural areas, the NBP also proposes:

•

Improving the environment for providing fixed wireless services.

Many of the NBP proposals for wireless broadband may be achieved through changes in FCC

regulations governing spectrum allocation and assignment. Other actions may require changes by

federal agencies, state authorities, and commercial owners of spectrum licenses. To assist the

implementation of the NBP there are also a number of areas where congressional action might be

required to change existing statutes or to give the FCC new powers. The NBP includes the

announcement of plans for the FCC to create what it refers to as a Spectrum Dashboard.56 The

initial release of the FCC’s Spectrum Dashboard provided an interactive tool to search for

information about how some non-federal frequency assignments are being used.57 The dashboard

could be used to meet requirements set by Congress for a spectrum inventory. In addition to the

dashboard, the NBP proposes that the FCC and the National Telecommunications and

Information Administration (NTIA) should create methods for recovering spectrum58 and that the

Prepared by (name redacted), Specialist in Telecommunications Policy.

Broadband refers here to the capacity of the radio frequency channel. A broadband channel can quickly transmit live

video, complex graphics, and other data-rich information as well as voice and text messages, whereas a narrowband

wireless channel might be limited to handling voice, text, and some graphics.

Many of the spectrum policies and proposals discussed in this section are covered in CRS Report R40674, Spectrum

Policy in the Age of Broadband: Issues for Congress , by (name redacted)

Connecting America: The National Broadband Plan, Recommendation 5.1.

For more information on the Spectrum Dashboard, go to http://reboot.fcc.gov/reform/systems/spectrum-dashboard/

about.

Connecting America: The National Broadband Plan, Recommendation 5.2.

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FCC maintain an ongoing spectrum strategy plan.59 The NTIA manages federal use of spectrum,

among other responsibilities. All of these steps will facilitate decisions about spectrum

management by providing detailed information about the current and potential use of spectrum

resources.

From a policy perspective, the NBP recommendations that would speed the arrival of new,

spectrally efficient technologies might have the most impact over the long term. In particular,

support for exploring ways to use technologies that enable sharing could pave the way for

dramatically different ways of managing the nation’s spectrum resources.

The need for a robust plan to accelerate the adoption of new technologies has, however, been

eclipsed by public debate over the plan’s proposed steps to add 300 MHz60 of licensed spectrum

for broadband within five years. All of the spectrum assignment proposals put forth in the NBP

are contentious in that the various parties affected by the decisions have diverging views on how

technology should be used to provide access to these frequencies. The disagreements may be in

part over the cost of implementing different technological solutions, or about a shift in who

controls access, but these are associated with the technical fixes the FCC has proposed to

facilitate the spectrum assignment.

The NBP has laid out several opportunities for the FCC, the NTIA, and other government

agencies to contribute to and encourage the development of new technologies for more efficient

spectrum access.61 For example, Congress might choose to require performance goals for

improved spectrum efficiency, not unlike the way federal goals have been set for energy

conservation or transportation safety. Congress might also evaluate how a detailed plan to

encourage new technologies might assist in resolving current disagreements about spectrum

assignment and use. The impact of evolving technologies on spectrum management is discussed

in the section “Technology and Spectrum Management.”

Spectrum Assignment

One of the management tools available to the FCC is its power to assign spectrum licenses

through auctions. Auctions are regarded as a market-based mechanism for assigning spectrum.

Before auctions became the primary method for distributing spectrum licenses the FCC used a

number of different approaches, primarily based on perceived merit, to select license-holders. The

FCC was authorized to organize auctions to award spectrum licenses for certain wireless

communications services in the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66).

Following passage of the act, subsequent laws that dealt with spectrum policy and auctions

included the Balanced Budget Act of 1997 (P.L. 105-33), the Auction Reform Act of 2002 (P.L.

107-195), the Commercial Spectrum Enhancement Act of 2004 (P.L. 108-494, Title II), and the

Deficit Reduction Act of 2005 (P.L. 109-171). The Balanced Budget Act of 1997 (1997 Act) gave

Ibid., Recommendation 5.3.

Spectrum is segmented into bands of radio frequencies and typically measured in cycles per second, or hertz.

Standard abbreviations for measuring frequencies include kHz—kilohertz or thousands of hertz; MHz—megahertz, or

millions of hertz; and GHz—gigahertz, or billions of hertz.

Connecting America: The National Broadband Plan, Recommendations 5.13 and 5.14. The NBP proposed that the

National Science Foundation “should fund wireless research and development that will advance the science of

spectrum access.” p. 96.

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the FCC auction authority until September 30, 2007. This authority was extended to September

30, 2011, by the Deficit Reduction Act of 2005 and to 2012 by the DTV Delay Act (P.L. 111-4).

In the NBP, the FCC has proposed taking steps to add 300 MHz of licensed spectrum for

broadband within five years and a total of 500 MHz of new frequencies in ten years.62

Approximately 50 MHz would be released in the immediate future by the completion of existing

auction plans. An additional 40 MHz would be made available for auction, of which 20 MHz

would be reassigned from federal to commercial use. Reallocating some spectrum from over-theair broadcasting to commercial spectrum might provide an additional 120 MHz of spectrum. Final

rulings on existing proceedings would release 110 MHz, of which 90 MHz would be for Mobile

Satellite Services (MSS). Resolution of interference issues between Wireless Communications

Services (WCS) and satellite radio would free up 20 MHz of new capacity.

Although Congress has shown interest in all of these debates, two proposals that are the most

likely to generate interest in congressional action are repurposing and auctioning an estimated

120 MHz of airwaves assigned to over-the-air digital television broadcasting and the plans for

auctioning the D Block (10 MHz in the 700 MHz band). These proposals are discussed below.

Television Broadcast Spectrum

The Balanced Budget Act of 1997 represented the legislative culmination of over a decade of

policy debates and negotiations between the FCC and the television broadcast industry on how to

move the industry from analog to digital broadcasting technologies. To facilitate the transition,

the FCC provided each qualified broadcaster with 6 MHz of spectrum for digital broadcasting to

replace licenses of 6 MHz that were needed for analog broadcasting. The analog licenses would

be yielded back when the transition to digital television was concluded. The completed transition

freed up the 700 MHz band for mobile communications and public safety in 2009.

The FCC has revisited the assumptions reflected in the 1997 Act and has made new proposals,

and decisions based on, among other factors, changes in technology and consumer habits. The

NBP announced that a new proceeding would be initiated to recapture up to 120 MHz of

spectrum from broadcast TV allocations for re-assignment to broadband communications. This

proceeding would propose four sets of actions to achieve the goal; a fifth set of actions to increase

efficiency would be pursued separately.63 The FCC stipulated in the NBP that its

recommendations “seek to preserve [over-the-air television] as a healthy, viable medium going

forward, in a way that would not harm consumers overall, while establishing mechanisms to

make available additional spectrum for flexible broadband uses.”64

Many of the proposals for redirecting TV broadcast capacity are based on refinements in the way

frequencies are managed and are procedural in nature. Because over-the-air digital broadcasting

does not necessarily require 6 MHz of spectrum, the NBP has proposed that some stations could

share a single 6 MHz band without significantly reducing service to over-the-air TV viewers. The

NBP also has proposed that broadcasters might form partnerships to provide other

communications services using licenses assigned to TV. Among the proposals for how

Ibid., Recommendation 5.8.

Ibid., Recommendation 5.8.5.

Ibid., p 89.

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broadcasters might make better use of their TV licenses, the NBP has raised the possibility of

auctioning unneeded spectrum and sharing the proceeds between the TV license-holder and the

U.S. Treasury. The FCC has called on Congress to provide new legislation that would allow these

“incentive auctions.” Although most spectrum license auction revenues are deposited as general

funds, Congress has passed laws that permit the proceeds to be used for other purposes. The plan

suggests the Commercial Spectrum Enhancement Act could provide a model for sharing auction

proceeds. The act created the Spectrum Relocation Fund to provide a mechanism whereby federal

agencies could recover the costs of moving from one spectrum band to another.

D Block

The D Block refers to a set of frequencies within the 700 MHz band that were among the

frequencies made available after the transition from analog to digital television in 2009. In

compliance with instructions from Congress to auction all unallocated spectrum in this band, the

FCC conducted an auction, which concluded on March 18, 2008. As part of its preparation for the

auction (Auction 73), the FCC sought to increase the amount of spectrum available to public

safety users in the 700 MHz band. Congress had previously designated 24 MHz of radio

frequencies in the 700 MHz band for public safety channels. In 2007, the FCC proposed to

allocate 10 MHz of the public safety frequencies specifically for broadband communications and

to match the allocation with 10 MHz of commercial spectrum. This commercial license, known as

the D Block, was to be auctioned under rules that would require the creation of a public-private

partnership to develop the two 10-MHz assignments as a single broadband network, available to

both public safety users and commercial customers. The D Block license was offered for sale in

Auction 73 but did not find a buyer. The FCC then set about the task of writing new service rules

for a re-auction of the D Block.65

In the NBP, the FCC announced its decision to auction the D Block under rules that would not

require a partnership with public safety but would establish a framework for priority access to the

D Block network by public safety users.66 Generally, public safety officials had anticipated that

the D Block would be an integral part of a public safety broadband network. Since the failed D

Block auction of 2008, there has also been growing pressure on the FCC and on Congress to take

the steps necessary to reallocate the D Block from commercial to public safety use. The NBP

announcement regarding the D Block has increased that pressure. Although funding and control

are critical elements of the debate, the controversy is rooted in contradictory assumptions about

the level of service and reliability that new, largely untried, and in some cases undeveloped

technology will be able to deliver for public safety broadband communications.

The FCC would address public safety needs such as developing standards and establishing

procedures through the newly established Emergency Response Interoperability Center (ERIC).67

ERIC would work closely with the Public Safety Communications Research program, jointly

Background information regarding the D Block is provided in CRS Report R40859, Public Safety Communications

and Spectrum Resources: Policy Issues for Congress , by (name redacted).

Connecting America: The National Broadband Plan, Recommendation 5.8.2.

FCC News, “The Federal Communications Commission Establishes New Emergency Response Interoperability

Center,” April 23, 2010, at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297707A1.pdf.

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managed by the National Institute of Standards and Technology (NIST) and the NTIA, to develop

and test the technological solutions needed for public safety broadband communications.68

Wireless Backhaul

Most mobile communications depend on fixed infrastructure to relay calls to and from wireless

networks. The infrastructure that links wireless communications to the wired world is commonly

referred to as backhaul. In situations where installing communications cables is impractical, fixed

wireless infrastructure may be used to provide the needed backhaul. Microwave technologies, for

example, are used in a number of applications to extend coverage to areas not served by fiberoptic or other wire links.

The NBP has predicted that the importance of backhaul will increase with the implementation of

4G technologies, as mobile access to the Internet and other wired networks becomes increasingly

prevalent.69 The FCC therefore has proposed to take a number of procedural steps to increase the

capacity of point-to-point wireless technologies.70

Technology and Spectrum Management

The NBP spectrum assignment proposals are based on managing radio channels as the way to

maximize spectral efficiency while meeting common goals such as minimizing interference

among devices operating on the same or nearby frequencies. Today, channel management is a

significant part of spectrum management; many of the FCC dockets deal with assigning channels

and resolving the issues raised by these decisions. In the future, channel management is likely to

be replaced by technologies that operate without the need for designated channels. The primary

benefit from these new technologies will be the significant increase in available spectrum but new

efficiencies in operational and regulatory costs will also be realized. The question for policy

makers might be: has the time come to take actions so that future technologies—many of which

are viewed as being within reach—become an integral part of planning for mobile broadband?

The concept of channel management dates to the development of the radio telegraph by

Guglielmo Marconi and his contemporaries. In the age of the Internet, however, channel

management is an inefficient way to provide spectrum capacity for mobile broadband. Innovation

points to network-centric spectrum management as an effective way to provide spectrum capacity

to meet the bandwidth needs of fourth-generation wireless devices.71 Network-centric

technologies organize the transmission of radio signals along the same principle as the Internet. A

transmission moves from origination to destination not along a fixed path but by passing from

one available node to the next. Pooling resources, one of the concepts that powers the Internet

now, is likely to become the dominant principle for spectrum management in the future.

NIST, “Demonstration Network Planned for Public Safety 700 MHz Broadband,” December 15, 2009 at

http://www.nist.gov/eeel/oles/network_121509.cfm.

Connecting America: The National Broadband Plan, p. 93.

Ibid., Recommendations 5.9 and 5.10.

A leading advocate for replacing channel management of radio frequency with network-centric management is

Preston Marshall, the source for much of the information about network-centric technologies in this report. Mr.

Marshall is Director, Information Sciences Institute, University of Southern California, Viterbi School of Engineering,

Arlington, Virginia.

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New Technologies

The iPhone 3G and 3GS provide early examples of how the Internet is likely to change wireless

communications as more and more of the underlying network infrastructure is converted to IPbased standards. The iPhone uses the Internet Protocol to perform many of its functions; these

require time and space—spectrum capacity—to operate. The next generation of wireless

networks, 4G, for Fourth Generation, will be supported by technologies structured and managed

to emulate the Internet. The wireless devices that operate on these new, IP-powered networks will

be able to share spectrum capacity in ways not currently used on commercial networks, greatly

increasing network availability on licensed bandwidths. Another technological boost will come

from improved ways to use unlicensed spectrum. Unlicensed spectrum refers to bands of

spectrum designated for multiple providers, multiple uses, and multiple types of devices that have

met operational requirements set by the FCC. Wi-Fi is an example of a current use of unlicensed

spectrum.

The FCC refers to the new technologies for licensed and unlicensed spectrum as “opportunistic.”

Identifying an opportunity to move to an open radio frequency is more flexible—and therefore

more productive—than operating on a set of pre-determined frequencies.

New technologies that can use unlicensed spectrum without causing interference are being

developed for vacant spectrum designated to provide space between the broadcasting signals of

digital television, known as white spaces. On September 11, 2006, the FCC announced a

timetable for allowing access to the spectrum so that devices could be developed.72 One of the

recommendations of the NBP is that the FCC complete the proceeding that would allow use of

the white spaces for unlicensed devices.

More efficient spectrum use can be realized by integrating adaptive networking technologies,

such as dynamic spectrum access (DSA),73 with IP-based, 4G commercial network technologies

such as Long Term Evolution (LTE). Adaptive networking has the potential to organize wireless

communications to achieve the same kinds of benefits that have been seen to accrue with the

transition from proprietary data networks to the Internet. These enabling technologies allow

communications to switch instantly among network frequencies that are not in use and therefore

available to any wireless device equipped with cognitive technology. Adaptive technologies are

designed to use pooled spectrum resources. Pooling spectrum licenses goes beyond sharing.

Licenses are aggregated and specific ownership of channels becomes secondary to the common

goal of maximizing network performance.

New Policies

The NBP has laid out several opportunities for the FCC, the NTIA, and other government

agencies to contribute to and encourage the development of new technologies for more efficient

spectrum access.74 Among the technologies that facilitate spectrum sharing are cognitive radio

FCC, First Report and Order and Further Notice of Proposed Rule Making, ET Docket No. 04-186, released

October 18, 2006.

Dynamic Spectrum Access, Content-Based Networking, and Delay and Disruption Technology Networking, along

with cognitive radio, and decision-making software, are examples of technologies that can enable Internet-like

management of spectrum resources.

Connecting America, Recommendations 5.13 and 5.14. The NBP proposed that the National Science Foundation

(continued...)

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and Dynamic Spectrum Access (DSA).75 Enabling technologies such as these allow

communications to switch instantly among network frequencies that are not in use and therefore

available to any radio device equipped with cognitive technology. Among the steps that might be

taken to encourage spectrum-efficient technologies, the NBP has recommended that the FCC

identify and free up a “new, contiguous nationwide band for unlicensed use” by 202076 and

provide spectrum and take other steps to “further development and deployment”of new

technologies that facilitate sharing.77 Unlike its recommendations for auctioning spectrum

licenses in the near future, the FCC’s plans for bringing new technologies into play provide few

details. The NBP provides a glimpse through the keyhole of the horizons beyond, but not the key

that might open the door.

The NTIA has recommended exploring “ways to create incentives for more efficient use of

limited spectrum resources, such as dynamic or opportunistic frequency sharing arrangements in

both licensed and unlicensed uses.”78 This suggestion was incorporated into the FY2011 Federal

Budget prepared by the Office of Management and Budget. The budget document directed the

NTIA to collaborate with the FCC “to develop a plan to make available significant spectrum

suitable for both mobile and fixed wireless broadband use over the next ten years. The plan is to

focus on making spectrum available for exclusive use by commercial broadband providers or

technologies, or for dynamic, shared access by commercial and government users.”79

A Presidential Memorandum80 has directed the NTIA to take a number of actions in support of

NBP goals, including taking the lead in creating and implementing a plan that will facilitate the

exploration of “innovative spectrum-sharing technologies.”

The NTIA’s Commercial Spectrum Management Advisory Committee is actively looking at

policy and technology issues in a series of subcommittee reports. The reports are addressing

spectrum inventory, transparency, dynamic spectrum access, incentives, unlicensed spectrum, and

sharing.81

The widespread adoption of opportunistic technologies would likely require a re-thinking of

spectrum management policies and tools. Policies for channel management to control interference

(...continued)

“should fund wireless research and development that will advance the science of spectrum access.” p. 96.

Dynamic Spectrum Access, Content-Based Networking, and Delay and Disruption Technology Networking, along

with cognitive radio, and decision-making software, are examples of technologies that can enable Internet-like

management of spectrum resources. DSA is part of the neXt Generation program, or XG, a technology development

project sponsored by the Strategic Technology Office of the Defense Advanced Research Projects Agency (DARPA).

The main goals of the program include developing both the enabling technologies and system concepts that

dynamically redistribute allocated spectrum.

Connecting America, Recommendation 5.11.

Connecting America, Recommendation 5.13.

Letter to the FCC, Re: National Broadband Plan, GN Doc. No. 09-51, January 4, 2010 at http://www.ntia.doc.gov/

filings/2009/FCCLetter_Docket09-51_20100104.pdf.

Office of Management and Budget, Budget of the U.S. Government, Fiscal Year 2011, Appendix, “Other Independent

Agencies,” p. 1263. See also, FCC, Fiscal Year 2011 Budget Estimates Submitted to Congress, February 2010 at

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296111A1.pdf.

The White House, Presidential Memorandum: Unleashing the Wireless Broadband Revolution, June 28, 2010 at

http://www.whitehouse.gov/the-press-office/presidential-memorandum-unleashing-wireless-broadband-revolution.

See Spectrum Management Advisory Committee website at http://www.ntia.doc.gov/advisory/spectrum/.

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could give way to standards for preventing interference by managing networks and devices. The

assignment and supervision of licenses would be replaced by policies and procedures for

managing pooled resources. If opportunistic technologies are adopted, auctioning licenses might

be replaced by auctioning access; the static event of selling a license replaced by the dynamic

auctioning of spectrum access on a moment-by-moment basis.

The testing of new technologies that increase spectrum capacity, and the policy changes they are

likely to bring, has been designated by the NBP as a future event. Its immediate plans for

spectrum policy are to fine-tune existing spectrum assignments to increase the availability of

licensed capacity. The level of opposition to most of these spectrum assignment plans might

suggest that current spectrum management practices have reached the point of diminishing

returns.

National Purposes82

Among the requirements for the NBP, Congress specified that it should include

a plan for use of broadband infrastructure and services in advancing consumer welfare, civic

participation, public safety and homeland security, community development, health care

delivery, energy independence and efficiency, education, worker training, private sector

investment, entrepreneurial activity, job creation and economic growth, and other national

purposes.83

In the plan, the FCC has made recommendations that might fulfill both social and economic

goals. In the section of the plan titled “National Purposes,” it has focused on social goals with an

agenda of actions for federal, state, and local agencies. The areas covered in this section are

•

Health care. The NBP identifies stated goals of the Department of Health and

Human Services that might be effectively supported with technologies that are

enhanced by access to broadband communications.

•

Education. The NBP proposes that broadband can provide an effective tool for

meeting the educational needs and ambitions of educators, students, and parents

of young children as well as support the Department of Education’s strategies to

improve educational achievement.

•

Energy and the Environment. According to the NBP, broadband has multiple

applications in the field of energy, conservation, and environmental protection.

For example, SmartGrid goals set by Congress84 might not be achievable without

broadband communications.

•

Economic Opportunity. Actions proposed in the NBP to further economic

opportunity are centered on increasing access to Information Technology for

small and medium-sized businesses. The role of broadband in providing job

training and employment services and supporting telework are also addressed in

recommendations.

Prepared by (name redacted), Specialist in Telecommunications Policy.

P.L. 111-5, § 6001 (k) (2) (D); 123 STAT. 516.

P.L. 110-140, Sec. 1301; 123 STAT. 1783.

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•

Government Performance. The NBP recommendations for federal government

actions encompass both ways that broadband might improve the effectiveness of

government and also steps the federal government might take to increase the

availability of broadband networks. The latter included federal actions to improve

cybersecurity and ways that federal agencies might assist communities and state

and local governments in building broadband infrastructure.

•

Civic Engagement. The NBP describes concepts such as government

transparency that can lead to greater participation by all in the democratic

process. Broadband access has been described in the plan as a useful tool for

encouraging civic engagement because of the part it plays in interactive

communication and providing information.

•

Public Safety. The NBP recommendations primarily address delivering wireless

broadband to the radios of first responders. It also considered the role of

broadband in upgrading the nation’s 911 services and emergency alert systems.

Meeting Policy Goals

Each of the sections on national purposes has mentioned the existing legislative and regulatory

framework and trends in the field that might benefit from better broadband access and services.

Although each sector serves different needs and goals, the NBP recommendations are fairly

similar for each. In general, stakeholders have been encouraged to

•

Create incentives to achieve broadband goals.

•

Leverage broadband technology, including wireless broadband.

•

Encourage innovation and improved productivity.

•

Provide or increase funding for programs that support broadband policy goals.

•

Modify regulations.

Each policy slice addresses aspects of the needs and services for the national purposes identified

in the NBP. Considering all these slices as a single policy pie may be difficult. However, there are

some common ingredients that each slice shares that could be addressed as a single policy.

Connectivity through broadband networks represents an area of convergence that might benefit

from a shared technology policy. The NBP observes that “... in many cases today’s connectivity

levels are insufficient for current use, let alone the needs of potential future applications.”85

The NBP discusses some of the ways that federal investment in broadband infrastructure might be

leveraged for community and state broadband services.86 The plan has recognized many of the

common elements of broadband use in the federal government but it has not explicitly addressed

the possibility of unifying them as a common infrastructure project with many applications riding

on a shared grid.

Development of the grid concept reflects recent trends in the expansion of the capabilities of the

Internet and its feeder networks. The grid supports applications of any type, at any endpoint. Its

Connecting America: The National Broadband Plan, p. 193.

Ibid., Recommendation 14.1.

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strength derives in good measure from the imposition of the Internet Protocol. Not only can the

grid accommodate any IP-based plug-in device but also it can route communications along any

link within the grid operations. Some technologies can operate within the grid network without

necessarily depending on terminals or switches. Software can reside anywhere and move around

inside the grid as needed.

The Internet is typically described as comprised of three main parts: the Internet backbone,

backbone access networks, and retail access networks—the services that link consumers and

small businesses to the Internet. In business theory, the components of Internet service might be

described as a distribution channel; the product—Internet access—is delivered to the end user

through wholesalers and retailers. Increasingly, the backbone access networks—the

wholesalers—are diversifying to accommodate new services that may never travel over the

Internet backbone. The more technologically sophisticated wholesalers are expanding through

internetworking to create powerful grids that run many applications to meet specific markets.

These advanced communications grids might provide the technology needed to coordinate federal

efforts to meet the goals laid out in “National Purposes.” An IP-enabled communications grid

could, for example, support next-generation 911 call centers and public safety radios, enable parts

of utility company smart grids, and deliver telehealth services.

The NBP recommends that the Executive Branch create a Broadband Strategy Council.87 This

council would coordinate efforts by the many agencies that the FCC has identified as having a

role in the plan’s implementation. The NBP has suggested that the President could require that

federal departments and agencies submit broadband implementation plans to the council. The

council could also act as an intermediary between the agencies and Congress regarding legislation

that might facilitate meeting the NBP’s goals. Another recommendation of the NBP would require

the FCC to track progress in meeting the plan’s goals.88

The FCC’s Authority to Implement the National

Broadband Plan89

One potential issue the FCC may face in its attempts to implement the NBP is the scope of the

agency’s authority to regulate broadband Internet access and management. The decision of the

D.C. Circuit earlier this year in Comcast v. FCC90 has thrown the agency’s current authority to

regulate these practices into doubt. Broadband Internet services are currently classified as

information services, to which Title I of the Communications Act applies.91 The FCC does not

possess direct authority to regulate services classified under Title I.92 The FCC has announced the

possibility of reclassifying the transmission component of broadband Internet services as a

Ibid., Recommendation 17.1.

Ibid., Recommendation 17.2.

Prepared by (name redacted), Legislative Attorney.

Comcast v. Federal Communications Commission, 600 F.3d 642 (D.C. Cir. 2010). (Comcast) CRS Report R40234,

The FCC’s Authority to Regulate Net Neutrality after Comcast v. FCC , by (name redacted).

See, Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable

Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, 17

FCC Rcd 4798 (2002) (Cable Modem Declaratory Ruling).

Id.

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telecommunications service under Title II of the Communications Act.93 The FCC hopes this

potential reclassification would ground the FCC’s authority to regulate broadband Internet

services more firmly in the governing law.

In order to understand the current uncertainty surrounding the FCC’s authority over broadband

Internet services, some background is needed. After the passage of the Telecommunications Act

of 1996, the FCC found it necessary to determine what kind of service broadband Internet service

was.94 The agency’s choices were to classify broadband Internet access as an information

service,95 over which it would have no direct authority to regulate under Title I, or as a

telecommunications service,96 over which it would have extensive authority to regulate under

Title II. There was also an intermediate option. The FCC contemplated classifying the

transmission component of a broadband Internet service as a telecommunications service, while

classifying the processing component as an information service.97 The FCC ultimately chose to

classify broadband Internet services as information services only.98

At the time (2002), the provision of broadband Internet services arguably was still a nascent

industry, and the FCC expressed a desire to avoid introducing into the developing market what it

thought at the time could be too many regulations.99 However, this was a contentious question.

The Supreme Court, in NCTA v. Brand X, made the final decision.100 The question before the

court was whether the FCC could define cable-modem services (i.e., cable broadband services) as

information services. Opponents of that classification argued that the FCC did not have discretion

to define cable modem services as an information service. The Court, however, sided with the

FCC. What is important for the purposes of this discussion is that the Court did not say that cable

modem services are clearly and unambiguously information services. Instead, the court said that

the definitions of telecommunications services and of information services were ambiguous as

they related to cable modem services, and that the FCC, as the agency with jurisdiction under the

Press Release, Chairman Julius Genachowski, FCC, The Third Way: A Narrowly Tailored Broadband Framework

(May 6, 2010). [“Genachowski Statement”]. Press Release, Austin Schlick, FCC, A Third-Way Legal Framework for

Addressing the Comcast Dilemma (May 6, 2010). [“Schlick Statement”].

It is worth noting that the Ninth Circuit Court of Appeals had issued a ruling declaring that cable modem Internet

service was a telecommunications service, prior to the FCC’s decision to implement a rulemaking on this issue. AT&T

Corp. v. City of Portland, 216 F.3d 871, 877-79 (9th Cir. 2002). However, as discussed infra, despite the FCC reaching

the opposite conclusion, the Supreme Court upheld the FCC’s interpretation of the Communications Act.

Information services are defined as:

the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving,

utilizing, or making available information via telecommunications, and includes electronic

publishing, but does not include any use of any such capability for the management, control or

operation of a telecommunications system or the management of a telecommunications service.

47 U.S.C. § 153(20).

Telecommunications services are defined as:

the offering of telecommunications for a fee directly to the public, or to such classes of users as to

be effectively available directly to the public, regardless of the facilities used.

47 U.S.C. § 153(46).

The agency identified a portion of cable modem Internet services as “Internet connectivity,” which is the portion the

agency would seek to redefine as a telecommunications service today. See Cable Modem Declaratory Ruling, 17 FCC

Rcd at 4809-11.

Cable Modem Declaratory Ruling, 17 FCC Rcd at 4819.

Ibid. at 14856.

100

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Brand X).

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Communications Act, had the authority to interpret those definitions.101 The Court gave deference

to the FCC’s determination that cable modem services should be defined as information services

and determined that the FCC’s classification of cable modem services in this way was

reasonable.102

However, three Justices dissented. Justice Scalia authored the dissent, concluding that cable

modem services were actually two separate services: the computing service which was an

information service, and the transmission service, which was a telecommunications service.103

The classification that these Justices believe the Communications Act clearly mandates is the

classification that the FCC now proposes to apply to broadband Internet services.104

Chairman Genachowski has announced his intention to pursue what he has termed “light touch”

Title II regulation of broadband services.105 As explained in the statement of the FCC’s General

Counsel, it is the intention of the FCC to commence a rulemaking to reclassify only the

transmission component of broadband access services (“Internet connectivity”) as a

telecommunications service, while the data processing portion of the service would remain an

information service.106 The Chairman argues that, in choosing only to reclassify the transmission

component of broadband access services, the reach of the FCC’s jurisdiction will be sufficiently

narrowed so as to avoid giving the agency the authority to regulate Internet content. This plan

would also avoid the imposition of regulation so pervasive as to become burdensome.107

In keeping with this announcement, on June 17, 2010, the FCC released a notice of inquiry (NOI)

into the framework of broadband Internet services.108 In the NOI, the agency asked for comment

on a number of questions. The FCC made clear that its ultimate goal in issuing the NOI was to

determine the best avenue for restoring the agency’s previous understanding of its authority to

regulate broadband Internet services.109 In other words, the FCC is seeking firmer ground for its

authority to continue rulemakings along the lines of the broadband network management

rulemakings110 and the order it issued in 2007 finding Comcast to be in violation of the FCC’s

network management policies.111 In doing so, the FCC recognizes that the D.C. Circuit’s decision

in Comcast v. FCC has thrown the agency’s assertions of ancillary authority over broadband

network management into considerable doubt.112

101

Ibid. at 987.

Ibid. at 991, 1002-03.

103

Ibid. at 1005 (Scalia, J., dissenting).

104

See Genachowski Statement, supra note 4; Schlick Statement, supra note 4.

105

Genachowski Statement, supra note 4.

106

Schlick Statement, supra note 4.

107

Genachowski Statement, supra note 4.

108

In the Matter of Framework for Broadband Internet Service, Notice of Inquiry, GN Docket No. 10-127 (2010)

available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-114A1.pdf. [“NOI”]

109

Ibid. at ¶¶ 1-2.

110

See Preserving the Open Internet: Broadband Industry Practices, GN Docket no. 09-191, WC Docket No. 07-52,

Notice of Proposed Rulemaking, 24 FCC Rcd 13064 (2009).

111

See Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading

Peer-to-Peer Applications; Broadband Industry Practices et al., WC Docket No. 07-52, Memorandum Opinion and

Order, 23 FCC Rcd 13028 (2008).

112

NOI, at ¶ 1.

102

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The NOI lists three main potential paths forward and seeks comment on the feasibility of each.

The first question the NOI asks is whether the FCC may find a better way to assert ancillary

authority over broadband Internet services.113 The D.C. Circuit did not foreclose on the possibility

of the FCC asserting ancillary authority in other ways. It merely rejected the FCC’s argument in

that particular case.114 Therefore, the FCC asks whether broadband Internet services may continue

to be classified as information services while the agency asserts a different statutory basis for

exercising ancillary jurisdiction. There are a number of potential theories for ancillary jurisdiction

for which the FCC seeks comment.115

The other two potential paths towards firmer authority to regulate would involve direct regulation

under Title II of the Communications Act. Therefore, it would be necessary to reclassify at least

the Internet connectivity portion of broadband Internet services as a telecommunications service,

because only telecommunications services are governed by Title II. The FCC asks for comment

on how to define Internet connectivity for reclassification.116 Assuming the FCC chooses one of

these two paths, this reclassification would likely be reviewed by the courts, in light of the fact

that the Supreme Court upheld the agency’s previous classification of broadband Internet services

as a unified information service. However, as discussed earlier, Brand X gave deference to the

FCC’s interpretation of the Communications Act in this area.117 Furthermore, in the recent case

FCC v. Fox Television, the Supreme Court held that when an agency issues a new (and different

from its previous) interpretation of a statute it has the authority to implement, the agency “need

not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the

reasons for the old one.”118 The agency must show only that its current interpretation is

reasonable, though in some circumstances a more detailed justification for the change must be

made than would otherwise be necessary if the agency was rulemaking on a blank slate.119

Assuming that such a reclassification is upheld by the courts, the second potential path forward

would be to apply the full force of Title II regulation to broadband Internet connectivity (as the

FCC would define it). The FCC seeks comment on the potential effects of such a decision.120

However, the Chairman and General Counsel have expressed that this is not the approach the

agency is likely to take.121 Rather, they have announced that their intention is to forbear from

applying the portions of Title II to broadband access services that the FCC deems contrary to the

public interest. Section 401 of the Telecommunications Act of 1996 requires the FCC to forbear

from applying any regulation or provision under Title II to a provider of telecommunications

services if the Commission determines that:

(1) enforcement of such regulation or provision is not necessary to ensure that the charges,

practices, classifications, or regulations by, for, or in connection with that

telecommunications carrier or telecommunications service are just and reasonable and are

113

114

Ibid. at ¶ 30.

See CRS Report R40234, The FCC’s Authority to Regulate Net Neutrality after Comcast v. FCC , by (name redacte

d).

115

NOI, at ¶¶ 32-51.

Ibid. at ¶¶ 52-66.

117

Brand X, 545 U.S. at 991.

118

FCC v. Fox Television Stations, Inc. 129 S. Ct. 1800, 1811 (2009).

119

Ibid.

120

NOI, at ¶ 52.

121

See Genachowski Statement, supra note 4; Schlick Statement, supra note 4.

116

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not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision

is not necessary for the protection of consumers; and (3) forbearance from applying such

provision or regulation is consistent with the public interest.122

The Chairman and General Counsel argued, in their statements, that this provision would require

forbearance from many of Title II’s more onerous provisions, such as the rate regulation and tariff

provisions, because applying those provisions would not be consistent with the public interest.123

The NOI asks for comment on this potential action.124 It further asks for comment on the

provisions on Title II from which the agency should not forbear. In particular, the NOI asks for

comment on applying the provisions of Title II that the FCC had identified as likely to be needed

to have adequate enforcement authority in its earlier press releases on this issue.125 These

provisions are Sections 201 (requiring service upon request and reasonable rates),126 202

(prohibiting unreasonable discrimination),127 208 (granting the FCC authority to act upon

complaints),128 222 (protecting privacy),129 254 (universal service),130 and 255131 (access for

disabled persons).132 In the FCC’s announcements, the General Counsel identified these

provisions as potentially sufficient to “do the job” of providing enough authority to accomplish

the FCC’s goals.133 However, the NOI asks for comment on other provisions that may be

necessary to assert jurisdiction.134

The NOI also asks for comment on a number of other issues, including the method of forbearing.

Currently, companies seeking forbearance from a provision of Title II (which had heretofore

presumably applied to such companies) apply to the FCC seeking such forbearance. Under the

FCC’s proposal, the FCC would forbear under its own motion to maintain what is currently the

status quo.135 The FCC seeks comment on the process the agency should adopt for accomplishing

this plan. The agency also seeks comment on how to treat wireless broadband services (terrestrial

and satellite). The agency notes that “there are technological, structural, consumer usage, and

historical differences between mobile wireless and wireline/cable networks” that may require

different statutory and regulatory treatment.136 Furthermore, the agency seeks comment on other

122

Codified at 47 U.S.C. § 160.

See Genachowski Statement, supra note 4; Schlick Statement, supra note 4.

124

NOI, at ¶ 74. The Chairman and General Counsel analogized this approach to its regulation of wireless voice

communications. In 1993, Congress specified that Title II applies to wireless communications, such as cellular phone

service. 47 U.S.C. § 332(c). Section 332(c) gave the FCC the discretion to determine which regulations under Title II

should be inapplicable to wireless voice services; however, the FCC could not forbear from applying Sections 201, 202,

or 208 to wireless voice services. Id. Similarly, the statement of the Chairman has pledged to apply Sections 201, 202,

and 208 to broadband access services

125

NOI, at ¶¶ 74-85.

126

47 U.S.C. § 201

127

47 U.S.C. § 202.

128

47 U.S.C. § 208.

129

47 U.S.C. § 222.

130

47 U.S.C. § 254.

131

47 U.S.C. § 255.

132

Genachowski Statement, supra note 4.

133

Schlick Statement, supra note 4.

134

NOI, at ¶¶ 86-7.

135

Ibid. at ¶¶ 69-70.

136

Ibid. at ¶¶ 101-05.

123

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open questions, such as the implications changes may have for state and local regulators,137 and

the effect any action taken to reclassify might have on the Communications Assistance for Law

Enforcement Act.138 Comments are due July 15, 2010, and reply comments are due by August 12,

2010. Any decisions that the FCC may make as a result of this proceeding will likely face legal

challenge.

Towards a National Broadband Policy?

Policy issues discussed in the previous sections—universal service reform, intercarrier

compensation, mandating of gateway set-top devices, spectrum policy for wireless broadband,

and national purposes—all seek to address the NBP’s availability and adoption goals, each in

their own way. At the same time, the debate over the FCC’s authority to regulate broadband

services will likely impact the FCC’s ability to achieve many of the goals of the NBP.

The cumulative effect of these and other discrete policies and initiatives proposed by and related

to the NBP can be viewed as pieces of an overall strategy towards achieving NBP goals. The

release of the NBP is seen by many as a precursor towards the development of a national

broadband policy—whether comprehensive or piecemeal—that will likely be shaped and

developed by Congress, the FCC, and the Administration.

Viewed holistically, several themes emerge from the NBP, with each theme having implications

for policymakers with respect to a national broadband policy as it goes forward:

•

Government-private sector balance—the NBP acknowledges that the growth of

broadband in the U.S. has been “fueled primarily by private sector investment

and innovation,”139 and that “the role of government is and should remain

limited.”140 However, given the identified gaps in broadband availability and

adoption, the NBP envisions an active role for government, saying that “we must

strike the right balance between the public and private sectors,” and that “done

right, government policy can drive and has driven progress.”141 Specifically, the

NBP states that “instead of choosing a specific path for broadband in America,

this plan describes actions government should take to encourage more private

innovation and investment.”142 The challenge for broadband policymakers will be

to assess whether an appropriate balance is maintained between the public and

private sectors, and the extent to which government intervention in the broadband

marketplace will help or hinder private sector investment and competition.

•

Interconnectedness—the NBP views broadband as an “ecosystem” and suggests

that many of the diverse topics and issues covered in the NBP, though seemingly

distinct and separate, are in fact interconnected. For example, the NBP contains

recommendations intended to allay consumers’ concerns over Internet privacy,

137

Ibid. at ¶¶ 109-10.

Ibid. at ¶¶ 88-9.

139

Connecting America: The National Broadband Plan, p. xi.

140

Ibid., p. 5.

141

Ibid.

142

Ibid.

138

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which in turn could lead to higher adoption rates and greater broadband and

Internet utilization, which in turn could help provide more market incentive for

private sector providers to deploy broadband infrastructure. The NBP identifies

applications, devices, and networks as the key forces shaping the broadband

ecosystem, and states that these three forces “drive each other in a virtuous

cycle.”143 The NBP’s focus on the quality of interconnectedness—and the central

metaphor of broadband as an ecosystem—implies that policymakers should

consider the various issues not in a vacuum, but as part of an integrated whole.

•

National purposes—as directed by the ARRA, the NBP emphasizes that

broadband infrastructure and services should be utilized to advance important

national purposes including health care, education, energy and the environment,

economic opportunity, government performance, civic engagement, and public

safety. Broadband availability and adoption could both drive and be driven by the

growth of these national purpose applications. Recommendations addressing

national purpose applications impact different sectors of society (e.g., health care,

education, energy), and in turn call for action by different agencies of the federal

government (e.g., Department of Health and Human Services, Department of

Education, Department of Energy). A challenge for policymakers will be to

ensure adequate coordination among the disparate agencies and entities

implementing various broadband-related policies.

To achieve the goals it has set for the year 2020, the NBP has called for moving forward on a

number of specific initiatives, many of which address some of the ongoing major

telecommunications policy issues likely to be debated and considered by Congress, the

Administration, and the FCC. A major issue for Congress will be how to shape the Plan’s various

initiatives when and if they go forward, either through oversight, through consideration of

specific legislation, or in the context of comprehensive telecommunications reform.

While most agree with the general goals of the NBP—for example, that robust and affordable

broadband should be available and utilized throughout the United States—disagreement persists

on the best ways to reach those goals. A key challenge for Congressional policymakers will be to

assess whether an appropriate balance is maintained between the public and private sectors, and

the extent to which government intervention in the broadband marketplace would help or hinder

private sector investment and competition.

143

Ibid., p. 15.

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Table 1. Outline of National Broadband Plan

1. Establishing

competition policies

Collect, analyze, benchmark and

publish detailed, market-by-market

information on broadband pricing

and competition

Develop disclosure requirements for

broadband service providers

Undertake a comprehensive review

of wholesale competition rules

Free up and allocate additional

spectrum for unlicensed use

Update rules for wireless backhaul

spectrum

Expedite action on data roaming

Change rules to ensure a

competitive and innovative video settop box market

Clarify the Congressional mandate

allowing state and local entities to

provide broadband in their

communities

Clarify the relationship between

users and their online profiles to

enable continued innovation and

competition in applications and

ensure consumer privacy

2. Ensuring efficient

allocation and use of

government-owned and

government-influenced

assets

Spectrum

Make 500 megahertz of spectrum

newly available

Enable incentives and mechanisms to

repurpose spectrum

Ensure greater transparency

Expand opportunities for innovative

spectrum access models

Infrastructure

Establish low and more uniform

rental rates for access to poles

Improve rights-of-way management

for cost and time savings

Facilitate efficient new infrastructure

construction

Provide ultra-high-speed broadband

connectivity to select U.S.

Department of Defense installations

3. Creating incentives for

universal availability and

adoption of broadband

Ensure universal access to broadband

network services

Create the Connect America Fund

(CAF)

Create a Mobility Fund to provide

targeted funding

Transition the “legacy” High-Cost

component of the USF

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Reform intercarrier compensation

Design the new Connect America

Fund and Mobility Fund in a taxefficient manner

Broaden the USF contribution base

Create mechanisms to ensure

affordability to low-income

Americans

4. Updating policies,

setting standards and

aligning incentives to

maximize use for national

priorities

Expand the Lifeline and Link-Up

programs by allowing subsidies

provided to low-income Americans

to be used for broadband

Consider licensing a block of

spectrum with a condition to offer

free or low-cost service

Ensure every American has the

opportunity to become digitally

literate

Launch a National Digital Literacy

Corps

Health care

Education

Energy and the environment

Economic opportunity

Government performance and civic

engagement

Public safety and homeland security

Source: Compiled by CRS from the National Broadband Plan.

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Table 2. Recommendations of the National Broadband Plan to Congress

Chapter

Recommendation

Broadband

Competition and

Innovation Policy

4.14: Congress, the Federal Trade Commission (FTC) and the FCC should consider clarifying

the relationship between users and their online profiles.

Spectrum

4.15: Congress should consider helping spur development of trusted “identity providers” to

assist consumers in managing their data in a manner that maximizes the privacy and security of

the information.

5.4: Congress should consider expressly expanding the FCC’s authority to enable it to

conduct incentive auctions in which incumbent licensees may relinquish rights in spectrum

assignments to other parties or to the FCC.

5.5: Congress should consider building upon the success of the Commercial Spectrum

Enhancement Act (CSEA) to fund additional approaches to facilitate incumbent relocation.

5.6: Congress should consider granting authority to the FCC to impose spectrum fees on

license holders and to NTIA to impose spectrum fees on users of government spectrum.

Infrastructure

6.5: Congress should consider amending Section 224 of the act to establish a harmonized

access policy for all poles, ducts, conduits and rights-of-way.

6.8: Congress should consider enacting “dig once” legislation applying to all future federally

funded projects along rights-of-way (including sewers, power transmission facilities, rail,

pipelines, bridges, tunnels and roads).

6.9: Congress should consider expressly authorizing federal agencies to set the fees for access

to federal rights-of-way on a management and cost recovery basis.

Research and

Development

7.2: Congress should consider making the Research and Experimentation (R&E) tax credit a

long-term tax credit to stimulate broadband R&D.

Availability

8.15: To accelerate broadband deployment, Congress should consider providing optional

public funding to the Connect America Fund, such as a few billion dollars per year over a two

to three year period.

8.16: Congress should consider expanding combination grant-loan programs.

8.17: Congress should consider expanding the Community Connect program.

8.18: Congress should consider establishing a Tribal Broadband Fund to support sustainable

broadband deployment and adoption in Tribal lands, and all federal agencies that upgrade

connectivity on Tribal lands should coordinate such upgrades with Tribal governments and the

Tribal Broadband Fund grant-making process.

8.19: Congress should make clear that state, regional and local governments can build

broadband networks.

8:21: Congress should consider amending the Communications Act to provide discretion to

the FCC to allow anchor institutions on Tribal lands to share broadband network capacity

that is funded by the E-rate or the Rural Health Care program with other community

institutions designated by Tribal governments.

Adoption and

Utilization

9.10: Congress, the FCC and the U.S. Department of Justice (DOJ) should modernize

accessibility laws, rules and related subsidy programs.

9.12: Congress and federal agencies should promote third-party evaluation of future

broadband adoption programs.

9.14: The Executive Branch, the FCC and Congress should consider making changes to ensure

effective coordination and consultation with Tribes on broadband-related issues.

Health Care

10.1: Congress and the Secretary of Health and Human Services (HHS) should consider

developing a strategy that documents the proven value of e-care technologies, proposes

reimbursement reforms that incent their meaningful use and charts a path for their

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Chapter

Recommendation

widespread adoption.

10.2: Congress, states and the Centers for Medicare & Medicaid Services (CMS) should

consider reducing regulatory barriers that inhibit adoption of health IT solutions.

10.5: Congress should consider providing consumers access to—and control over—all their

digital health care data in machine-readable formats in a timely manner & at a reasonable cost.

10.10: Congress should consider providing an incremental sum (up to $29 million a year) for

the Indian Health Service for the purpose of upgrading its broadband service to meet

connectivity requirements.

Education

11.4: Congress should consider taking legislative action to encourage copyright holders to

grant educational digital rights of use, without prejudicing their other rights.

11.22: Congress should consider amending the Communications Act to help Tribal libraries

overcome barriers to E-rate eligibility arising from state laws.

11.25: Congress should consider providing additional public funds to connect all public

community colleges with high-speed broadband and maintain that connectivity.

Energy and the

Environment

12.4: Congress should consider amending the Communications Act to enable utilities to use

the proposed public safety 700MHz wireless broadband network.

12.7:States should require electric utilities to provide consumers access to, and control of,

their own digital energy information, including real-time information from smart meters and

historical consumption, price and bill data over the Internet. If states fail to develop

reasonable policies over the next 18 months, Congress should consider national legislation to

cover consumer privacy and the accessibility of energy data.

Economic

Opportunity

13.4: Congress should consider additional funds for the Economic Development

Administration (EDA) to bolster entrepreneurial development programs with broadband

tools and training.

13.6: Congress should consider eliminating tax and regulatory barriers to telework.

Government

Performance

14.2: When feasible, Congress should consider allowing state and local governments to get

lower service prices by participating in federal contracts for advanced communications

services.

14.4: The Executive Branch and Congress should consider using federal funding to encourage

cities and counties to gather information on initiatives enabled by broadband in ways that

allow for rigorous evaluation and lead to an understanding of best practices.

14.17: Congress should consider re-examining the Privacy Act to facilitate the delivery of

online government services and to account for changes in technology.

Civic Engagement

15.6: Congress should consider increasing funding to public media for broadband-based

distribution and content.

15.7: Congress should consider amending the Copyright Act to provide for copyright

exemptions to public broadcasting organizations for online broadcast and distribution of

public media.

15.9: Congress should consider amending the Copyright Act to enable public and broadcast

media to more easily contribute their archival content to a digital national archive and grant

reasonable noncommercial downstream usage rights for this content to the American people.

Public Safety

16.4: Preserve broadband communications during emergencies.

16.14: Congress should consider enacting of federal regulatory framework.

Source: Compiled by CRS from the National Broadband Plan.

Congressional Research Service

The National Broadband Plan

Author Contact Information

(name redacted)

Specialist in Science and Technology Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Telecommunications Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Telecommunications Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Telecommunications Policy

[redacted]@crs.loc.gov, 7-....

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