Congressmen accuse FCC of violating law in delaying AWS-3 vote

Chairman Kevin Martin can't win for losing. Taking the President's and a powerful senator's advice yesterday in delaying a critical vote on nationwide free broadband...again, two more congressmen are sounding legal alarms.

After the chairman of the Federal Communications Commission took the advice of both President Bush and powerful senators this week, delaying a vote on the auctioning of the so-called AWS-3 block of spectrum until sometime after the DTV transition next February, a pair of congressmen sent a joint letter to FCC Chairman Kevin Martin advising him that he may have broken the law in so doing.

"The Commission should not be in continual violation of the Communications Act," wrote Rep. Bobby Rush (D - Ill.) and Rep. Edolphus Towns (D - N.Y.), in a letter dated yesterday. "The technical issues in the proceeding have been fully addressed, and it is our understanding that both of you specifically pledged that this long-standing matter would be resolved no later than August 2008. Therefore, the Commission should establish the AWS-3 service rules immediately. Delay on this matter is not only a violation of law, but it thwarts public policy that promotes high-speed data services in underserved communities across this nation."

Rep. Towns may be testing out his new authority, which is due to take effect next month with the swearing in of the next Congress. At that time, Towns will become the Chairman of the House Committee for Oversight and Government Reform.

Supporting Chairman Martin in his decision is Sen. Jay Rockefeller (D - W.V.), who is likely to chair the powerful Commerce Committee in the next Congress. For over a decade, Sen. Rockefeller has been an advocate of reform of the FCC, changing the way commissioners are selected and their terms of office. Some of his suggested reforms have even met with support from within the Commission itself.

But any legislation Rockefeller may be considering to kick off the next Congressional term will require support of powerful House counterparts, including Rep. Towns. Along with Rep. Rush, Towns is backing the efforts of M2Z Networks, which seeks to operate a nationwide free broadband service in the AWS-3 spectrum. Under the rule which the FCC had been scheduled to vote on today, a portion of that spectrum must be set aside for this free broadband service, which the auction winner must co-operate along with M2Z.

M2Z's campaign to compel the FCC to act began in the spring of 2007, when it sought help from the D. C. Circuit Court of Appeals to compel the FCC to vote on its initial plan to provide free broadband service. The FCC continued to delay its vote until September, when it gave M2Z the result it didn't want to hear: It denied M2Z's petition, forcing it to file yet another appeal.

The FCC's continual delay has been considered a repeated blow to the efforts of one of the nation's most innovative minority-owned businesses. Reps. Towns and Rush are both African-American, and they made that point clear in their letter to Chairman Martin yesterday.

"Failure to promptly act on this matter would, once again, be evidence of the steep barriers that minority-owned firms face in entering the telecommunications marketplace," the congressmen wrote. "We hope the Commission will allow such firms the same opportunity to participate in the market as afforded larger, established competitors."

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