Genachowski Moving Slower than Expected on NBP Recommendations

"Culturally, it’s not clear that this commission has learned how to get things done,” said a person who served as a senior official in two Democratic FCC administrations. “In consultant jargon, this commission is very good at getting the first progress review, where you go to the client and say, ‘These are our great ideas’ and framing the issue and making a nice set of charts.” They're not as good at finishing, the official said.

The FCC has met all of the “aggressive” deadlines set out by Genachowski, said a senior FCC official, responding to questions posed of the chairman’s office. “Nearly everything we said we were going to do in 2010 is going to happen by year end,” he said. “We will continue to tackle some of the most difficult challenges in the days and weeks ahead."

The massive plan calls for action on a host of items before October, including a TV white spaces opinion and order, a public safety broadband order and rulemaking notices about broadcast spectrum, dynamic spectrum access, special access, and Lifeline flexibility. It’s unclear how many will be completed by then. The commission updates its progress at http://xrl.us/bhf9kj. By its count, the FCC is 35 percent of the way toward meeting a plan goal of promoting mobile broadband infrastructure and innovation and 41 percent toward a goal of accelerating universal broadband access and adoption.

Most of the FCC’s attention since the plan’s release has been on net neutrality and a proposal to reclassify broadband transmission as a common carrier service under Title II of the Communications Act. That’s after the U.S. Court of Appeals for the District of Columbia Circuit ruled in April that the commission lacked authority under Title I of the Act to censure Comcast for interfering with subscribers’ Internet traffic.

"They have a tough job and certainly the Comcast decision threw a wrench into their plans,” said another ex-FCC official, who served on the eighth-floor in a Democratic administration. The national plan “was good, it was comprehensive, but they could have allocated more staff resources to actually getting things done instead of spending a year to write a plan. ... There really haven’t been a whole lot of deliverables. I wouldn’t normally be critical -- because I do appreciate the pressures that are only really felt by the chairman’s office, pressures that the other commissioners don’t feel -- but I do feel it is fair to criticize them a little bit about the slow pace of implementation.”

The Comcast decision inevitably slowed things down, a former FCC staffer said. “A lot of things they want to do in the plan they can’t do until they get clear legal authority,” he said. “Otherwise, they're just going to turn around and be in a court case immediately. It also has become all-consuming on the eighth floor, so the eighth floor doesn’t have time to deal with anything until they deal with this Title I/Title II reclassification question.”

Public Knowledge Legal Director Harold Feld put himself in the front ranks of critics with a blog post in August accusing Genachowski of “stunning inability to make decisions, combined with an ability to generate his own political opposition by dithering.” Feld now sees signs that progress is accelerating on the plan. “I think that the FCC has heard the criticism and appears to be ramping up its efforts,” he told us. “There’s talk of trying to get a number of items related to the plan on the agenda for the September meeting. They're doing a lot of stakeholders meetings around [the Universal Service Fund]. I'd like to think they got the message and that, to their credit, they are now getting ready to step up and do what needs to be done.” But time will tell, Feld said. “They're still going to have make tough decisions, and we'll see how well they do on that,” he said. “But from what I can see over the last couple of weeks they seem to be trying to step up their game some. At some point, you've got to start issuing orders. The FCC can’t remain paralyzed forever just because they know once they issue an order it’s going to be appealed."

"The commission is moving apace on a few issues like spectrum policy, where it has clear authority,” said Michael Calabrese, vice president at the New America Foundation. “However, the uncertainty surrounding the FCC’s authority to regulate Internet access providers has created an enormous bottleneck that threatens progress on the National Broadband Plan overall. The chairman needs to remember he leads an independent regulatory agency and stop looking over his shoulder to Congress and the White House for permission to regulate.” Vice President Matt Wood of the Media Access Project said he’s “concerned” but not shocked that the FCC hasn’t done more on the plan. “The commission’s authority to move on many of these issues is cast into doubt by the Comcast decision,” he said. “Couple that with a seeming reluctance to make tough calls, and I am not too surprised, personally at least.”

"Broadband reclassification has crowded out almost everything else on the agenda, and not just as it relates to broadband,” said Sanford Bernstein analyst Craig Moffett. “They've made some progress around the edges of the NBP on issues like measurement and the MSS ATC spectrum. But the core issues of NBP implementation like USF are, if you'll forgive the pun, ‘inextricably intertwined’ with Title II."

There has been a “mismatch” between “early expectations and significantly altered political dynamics,” said Medley Global Advisors analyst Jeff Silva. In an ideal world, the FCC would make the progress expected by many, he said. “However, on a variety of levels, the politically charged debate over broadband framework/net neutrality likely has made it more difficult -- for policy and legal reasons -- to push out decisions in an orderly linear fashion."

Genachowski’s goal of including all relevant bureaus and offices in pending items and getting their views before acting is among the perceived reasons why this FCC seems to take longer to resolve items than previous commissions, agency and industry officials said. They said such efforts for more inclusive decisionmaking may lead to better outcomes, but it takes longer to get there and may make the process more complicated. FCC members approved a total of about 145 items of all kinds in the last 52 weeks, while 196 were acted on in all of 2008, according to one veteran lawyer’s calculations. Commission meetings illustrate this trend. Under Genachowski, they ran longer than the average under his three most recent predecessors but fewer items were approved by the Genachowski commission (CD May 10 p10).

The Genachowski FCC has been a mixed blessing for career staffers and the industries the commission regulates, according to a large group of communications lawyers, former high-ranking agency officials and current staffers we interviewed. They said bureau attorneys feel empowered under Genachowski to draft items as they see legally fit, and front-office officials can freely recommend action to the chairman’s aides. They said on items other than reclassification and net neutrality -- both routine and controversial and including executing on the broadband plan -- action seems to be taking longer because of a bottleneck in the chairman’s office. Genachowski doesn’t always quickly decide how to proceed, and items ranging from the D block to program carriage disputes and the 2010 media ownership review are taking longer than had been expected to wrap up.

"The leadership on the eighth floor is not setting any kind of an agenda other than the mega items” which is “sort of unprecedented,” said one former commissioner. Staffers are “in charge, they're running the asylum, so they can pretty much do what they want,” the ex-FCC member added. “I think that always makes folks happy and the agenda, other than the mega items, is very much staff driven.” That’s in contrast to the FCC under the last chairman, Kevin Martin, who was said to micromanage personnel and regulatory issues.

Media issues are among those behind schedule. The quadrennial media ownership review mandated by Congress for 2010 is set to wrap up early next year, when the review of Comcast’s planned purchase of control of NBC Universal may be finished, and action on program carriage, station license renewals and other items is taking longer than hoped, commission and industry officials said. “We can’t deal with these issues one-by-one until we have finished our Future of Media initiative,” said Chairman Charles Benton of the Benton Foundation. “You can’t shut down all the other media while things are being sorted out in broadband.” Analyst Kevin Taglang of the foundation and Benton said the commission has done a good job on preparing items for Universal Service Fund reform.

Resolution of program carriage cases is an area that has lagged, said CEO Robert Herring of WealthTV: “Regulations without timely enforcement become meaningless and encourage the discriminatory behavior that the regulations were designed to prevent.” An administrative law judge recommended in October that the full commission deny the independent programmer’s complaint against four cable operators, and no commission order has circulated (CD Aug 18 p2).

The agency under other chairmen has been slow to act on some issues, including broadcaster license renewals held up by pending indecency complaints, said General Counsel Jerald Fritz of Allbritton Communications. About four its seven TV stations have renewals held up, he said. “There are some things that the Enforcement Bureau could easily throw out on its face, but they don’t,” Fritz said: “They could speed things up, and when the chairman came in, that was one of his directives” but “there are just some things ingrained in the agency and stuck in the courts.”