FCC's McDowell: Careful that 'national broadband' isn't just for cable

Normally, Congressional legislation regarding broadband Internet service takes the time to define its terms. Right now, for purposes of US law in a rapidly changing technology climate, the law itself defines the term rather broadly. For example, 7 USC 31 section 950bb defines the phrase this way: "The term 'broadband service' means any technology identified by the Secretary as having the capacity to transmit data to enable a subscriber to the service to originate and receive high-quality voice, data, graphics, and video."

The keyword there is any, letting broadband effectively mean anything that serves the Internet at high speed and bandwidth. But appropriations bills are laws in a very different sense -- they don't amend US Code. They simply say, here's some money, and here's what it will be spent on...and maybe they give definitions, and maybe they don't.

In the case of H. R. 1, the massive federal stimulus bill signed into law last February 13, an appropriation was made for the FCC to build some kind of national broadband policy. As the final form of the bill reads: "That of the funds provided under this heading, amounts deemed necessary and appropriate by the Secretary of Commerce, in consultation with the Federal Communications Commission (FCC), may be transferred to the FCC for the purposes of developing a national broadband plan or for carrying out any other FCC responsibilities pursuant to division B of this Act, and only if the Committees on Appropriations of the House and the Senate are notified not less than 15 days in advance of the transfer of such funds."

There's nothing in the bill that says what "broadband" means; and for FCC Commissioner Robert McDowell -- one of only three active commissioners during a long transition period -- that sent up a red flag. Though yesterday begins a long public response period, during which the FCC is seeking advice and input from the general public, Comm. McDowell cautioned that the new team -- perhaps five members strong before too much longer -- should refrain from presuming, as lawmakers have done in the past, that broadband is provided by cable TV providers.

"It is critical that our plan be competitively and technologically neutral," wrote McDowell yesterday (PDF available here). "Given the incredibly diverse nature of our country -- both in terms of geography and demographics -- our plan must not favor one particular technology or type of provider over another, even inadvertently. Broadband deployment throughout America simply is not a one-size-fits-all proposition. Wireline, wireless, and satellite technologies are meaningful alternatives, each worthy of our attention. For instance, to deny the people of Alaska the benefits of broadband connectivity via wireless and satellite would be tantamount to isolating the tens of thousands of Americans who live on Native lands and in subsistence villages. Thus, as we proceed, we must be mindful of the law of unintended consequences before making any new rules."

McDowell went on to suggest that new rules be left open-ended, in order that new technologies such as white space transmission can be utilized by smaller companies that can get more done with less investment. The alternative, he warned, would be to repeat the usual pattern of the government (by way of the FCC) deciding who wins and who loses, and in so doing crafting laws whose rules are bound so much to the technology of the moment that they lead to a kind of red tape he called "whimsical regulatory arbitrage."

McDowell's warning comes in response to the FCC's call yesterday for public comments regarding the nature of a national broadband plan, to be delivered to Pres. Obama on February 17, 2010. The stated goal of the plan is to advise the President on "the most effective and efficient ways to ensure broadband access for all Americans." But what has yet to be determined is whether the plan will be limited to funding the builders of new network infrastructure, or whether it will go further and potentially grant municipal-bypassing national licenses to major players. Three years ago, legislation that Congress failed to pass would have created a national licensing scheme, using language that appeared to favor CATV providers such as Comcast and Cox over telecommunications carriers such as Verizon and AT&T.

Acting FCC Chairman Michael Copps' statement appears to give a nod to McDowell on this matter, saying, "Our Notice of Inquiry seeks to be open, inclusive, outreaching and data-hungry. It seeks input from stakeholders both traditional and nontraditional -- those who daily ply the halls of our hallowed Portals, those that would like to have more input here if we really enable them to have it, and those who may never have heard of the Federal Communications Commission. It will go outside Washington, DC to rural communities, the inner city and tribal lands. It will go where the facts and the best analysis we can find take it. It will look at broadband supply and broadband demand. It will look at broadband quality and affordable prices. It will endeavor to better understand, and hopefully build upon, the cross-cutting nature of what broadband encompasses, beginning with an appreciation that it brings opportunities to just about every sphere of our national life.

"And it can also consider, in addition to the many opportunity-generating characteristics of broadband, how to deal with any problems, threats or vulnerabilities that seem almost inevitably to accompany new technologies," Chairman Copps continued. "Ensuring broadband openness, avoiding invasions of people's privacy, and ensuring cybersecurity are three such challenges that come immediately to mind. We have never in history seen so dynamic and potentially liberating a technology as this. But history tells us that no major technology transformation is ever a total, unmixed, problem-less blessing."