Making Decisions Called Tough Part as FCC Follows Through on National Broadband Plan

The plan was a massive undertaking, with the commission hiring 78 consultants as special government employees who drew support from 300 FCC staffers, said Michael Senkowski, chairman of Wiley Rein’s telecom practice. They undertook 29 proceedings and wrote a 367-page report, he noted. “There was certainly a lot of production work,” and the spectrum targets were “very important,” Senkowski said. “The other part of it they did well was, the crew assigned to this went through and came up with every conceivable idea of migrating existing services, existing functions of the government and private sectors and putting them on broadband."

"There’s a long piece on what we could do in this country to put education on interactive broadband,” Senkowski said. When he was at the FCC “we would not have been looking at how to do interactive education,” Senkowski said. “We would have been taken out and shot by the White House at that point in time.” The plan offered chapters on energy, healthcare, economic opportunity, government performance and civic engagement, Senkowski noted. “One of the six goals, overall goals for this whole plan, was to have the personal ability to monitor and control your energy consumption. I don’t think I ever would have believed that would be part of an FCC report.”

Many challenges remain, said Senkowski, who said the commission has mainly stuck with the schedule that the plan set. “This is the easy part, which is the notice part, it’s not the decision part,” he said. “The question is whether they'll be able to meet [future] deadlines. Deadlines are tough. Let’s face it, they missed the statutory deadline for the report. If you don’t know that, it was month late,” he said. “The real test is going to be when they have to make decisions about what the rules will be, as opposed to asking the questions.”

"What the national plan does get right” in spectrum is targeting “low-hanging fruit,” such as the Wireless Communications Service band, for quick action, said Jennifer Richter, co-chair of the technology and communications practice at Patton Boggs. “The WCS band has been pending in a rulemaking for 13 years,” she said. The FCC “just concluded that rulemaking recently,” she said. “They identified that band as a band that needs to get done. They put their political will behind it and they set deadlines for getting it done. I think that is really important.” The plan also calls for putting the AWS-2 and AWS-3 bands into play, Richter said. “Those bands have been available and out there and available for rulemakings for three to six years,” she said. “There is spectrum available for wireless broadband and large new deployments have been impeded because the commission has not had the political will to get rulemakings done."

The FCC has also taken valuable steps to promote roaming, to clarify pole attachment rules and to create a zoning shot-clock for proposed wireless towers, Richter said. “These are the kind of very practical things that the commission can do to help enable wireless broadband.” The plan’s commitment to add unlicensed spectrum is also significant, she said. “The plan does note that the commission wants to make available an unlicensed band in the next 10 years,” she said. “That’s really important. For any of us that lived through the telecom bust … we know how important innovation was in the unlicensed bands after the bust.” After the bust 10 years ago, Wi-Fi hotspots were widely deployed at coffee shops across the U.S, she said. “That started to drive demand for broadband again and that got us all on the right track. Innovation happened in those unlicensed bands and that’s real important."

AT&T Vice President Joan Marsh said getting access to broadcast spectrum through an incentive auction, a key recommendation of the plan, poses enormous challenges. “Think about how hard this is going to be,” she said. The FCC has to figure out how to value the spectrum, what parts of the band broadcasters can keep, which part will be used by the government and how to set up a “mechanism that’s dynamic enough to allow market participants to come up in and bid on this stuff and people to understand what are their rights going to be after that auction,” she said.

"We support any mechanism out there out there to try to move this process along,” Marsh said. “At the end of the day I think you do need to put a shot clock on it, because probably someone is going to need to have to make some very, very hard decisions, and the FCC is not particularly good at that, given the five-member commission, the way it’s set up, the political process.” The FCC needs to look at all of the proposals, “but we've got to get it done,” Marsh said. “We can’t debate for a decade about how to structure an incentive auction or about how to repack the broadcast spectrum band to allow enough spectrum for the broadcasters to continue to provide their services."

Marsh said the FCC was right to put down a stake for spectrum goals. “We're sort of the tip of the spear in terms of spectrum consumption right now,” she said. “In a narrow-band voice world … increases in spectrum consumption were very predictable and not very radical -- a nice soft curve up. It really followed the penetration of cellular use. You could manage it. You could plan for it. It was all very predictable. That all changed in 2007 with the introduction of the iPhone.” Since AT&T launched the iPhone, Marsh said, “Usage went off the charts. Any aggressive forecast we had was quickly outstripped in terms of what consumers were doing with those devices.” She warned that all carriers will see this trend in coming years.

"The biggest challenge for policymakers … is clearing spectrum,” said Kathleen Ham, vice president of T-Mobile. “There are no vacant spaces around, or very few vacant spaces,” she said. “The FCC has about 50 megahertz in the pipeline now that it could auction, but you're talking hundreds of megahertz of spectrum. There just isn’t a lot of that lying around.” To get the amount of spectrum proposed in the plan, she said, “you have to make some very hard choices like going after the broadcasters or the federal government.”

T-Mobile’s experience clearing the AWS-1 band showed how difficult it is to get access to government spectrum even after it is auctioned, Ham said. “God help you to try and find out what the federal government is doing with the spectrum,” she said. “There may be some sharing opportunities for the spectrum, but the government is really hard to engage on these things.” T-Mobile bid $4.2 billion for AWS-1 spectrum, Ham said. She recalled sitting afterward in meetings with representatives of the Office of Management and Budget, the Department of Justice and other agencies. “They said, ‘Why are you here, T-Mobile?'” she said. “'Why are you even in this meeting? You don’t need to be here,'” she recalled. “We paid billions of dollars for this stuff that you guys are sitting on. Don’t we have any rights in this process?”