FCC Faces Tough Time Table to Get February Vote on Broadband Plan
The team writing the National Broadband Plan could be hard pressed to complete and submit the plan to FCC members in advance of what is expected to be a Feb. 11 meeting where it would be considered by commissioners. To give commissioners the usual three weeks to review what is likely to be a complicated set of proposals, Chairman Julius Genachowski would have to circulate a draft broadband order Jan. 21.
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Meanwhile, the public notices (PN) keep rolling out of the commission and the public record continues to grow. On Tuesday, the commission released its 24th notice, seeking comment on broadband measurement and consumer transparency of fixed residential and small business broadband services. Several more notices are expected based on a presentation at last week’s commission meeting. The FCC may also release a notice seeking comment on controversial spectrum reallocation issues (CD Nov 23 p1).
Timing issues raise questions about whether commissioners will actually vote on the plan, agency and industry sources suggest. Genachowski has indicated he will seek a vote by his fellow commissioners (CD Aug 21 p1). But nothing in the American Recovery and Reinvestment Act of 2009, which mandated submission of the plan to Congress by Feb. 17, requires a vote on the plan.
Commissioner Robert McDowell brought up timing concerns at last week’s meeting, asking how many more PNs the commission would issue (CD Nov 19 p5) prior to writing the report. “We've got a very short period of time to cobble this thing together,” he said. An FCC spokesman said Tuesday: “Our intent is to provide Congress with the plan by Feb. 17.”
A former FCC official said the broadband team could help by briefing commissioners on all the components of the plan even before a final draft is ready. The broadband team may have to break things into two tracks, with one focused on briefings and decision making and a second on writing the draft. “It may be all pieces,” the attorney said. “It’s just a collection of components at some level.” The source added, “The basic production is going to be a bear. Anytime you're doing a big item on this schedule it’s a huge issue.”
“As a legal matter, the FCC can publish this as a bureau-level document without a vote of the full commission,” Public Knowledge Legal Director Harold Feld said. “I don’t expect Genachowski to take that path. But the 3-week deadline is self-imposed to start with, and the fact that there is no need to hold a vote on this makes it all the more optional.” If the commission were to miss the statutory deadline, there is no legal consequence, Feld said. “While that is always a least-favorite option, this is not like a forbearance petition where it is deemed granted by a date certain,” he said. “If the plan is late because the members of the commission need more time to deliberate, they can do that.”
The broadband team may not have all the data it wanted in advance of writing the plan, said Dan Mitchell, legal vice president of the National Telecommunications Cooperative Association. But Mitchell said he’s encouraged by the amount of work already completed by commission staff, and has “no concerns” about the FCC finishing a report by Feb. 17. Staff have been working long hours and seem to recognize the plan may be the agency’s most important task since implementing the 1996 Telecom Act, he said.
Finishing the plan would have been a lot of work no matter what the due date, said President Curt Stamp of the Independent Telephone & Telecommunications Alliance. Regardless of the tight time frame, Stamp expects the FCC to meet the statutory deadline. The staff might have liked more time, but they know they have a statutory deadline to meet, he said.
“Logically, when you look at how all-encompassing the project is and the sheer volume of information and issues, it is a very daunting task and difficult for others to have a comprehensive review given a short review period,” a wireless industry source said. “On the other hand, the chairman has been very good about being vocal on the overall direction and areas of interest, and the updates provided during the commission meetings provide some view.”
The broadband team might need to have at least an outline ready by Christmas for review by the chairman, said a wireline industry official. Commissioner offices will likely insist on detailed briefings in early January, long before the three-week period usually given to FCC items on circulation, the source said. Staff likely will be “working around the clock” to finish their work, because they have “no choice” but to get it done. The final result may be less perfect than the staff wanted, but given the time frame it will be tough to blame them, said the wireline industry source. Commissioners seem concerned about the timing, but there appears to be understanding that the broadband team is doing the best it can given the circumstances, the person said.