An Achievable Broadband Policy
An Achievable Broadband Policy
An Achievable Broadband Policy

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    The National Broadband Plan is a chance for the FCC to articulate a vision for improving the deployment and adoption of broadband in the United States. In two sets of comments filed this week with the FCC, we highlight recommendations that would encourage new entry into broadband markets, and encourage the FCC to put its treatment of broadband on a firmer legal ground. Additionally, along with many other public interest groups, we're a signatory to this statement encouraging the FCC to adopt a bold, yet pragmatic policy for promoting broadband.

    These issues are complex–it's hard to reduce broadband policy to a couple of key phrases. In general, the market structure for broadband services has been shaped by decades of conflicted public policy. We believe that this structure should be moved in a direction that promotes the entry of new broadband competitors. This post will summarize some key points from our separate filings.

    We don't think that competition between wireline broadband providers is doomed to be only between DSL and cable (or fiber and cable). Rather, the Commission can promote wireline competition through a few targeted measures, such as preempting state law on the resale of fiber, and preventing the retirement of still-functional copper telephone lines. (DOCSIS 3.0, a standard which achieves fiber speed on coaxial cable, shows that you shouldn't underestimate the capacity that can be squeezed out of legacy infrastructure.) We're not alone in thinking that the FCC should refocus the its universal service policies from “plain old telephone service” to broadband. These policies ensure that essential communications facilities are available in areas that expensive to serve (such as rural communities) and are affordable for everyone, and they should be updated to promote 21st century communications needs. Finally, if certain competition benchmarks are not met, the Commission should institute open access and structural separation policies, to ensure that multiple ISPs can reach consumers over a shared infrastructure. These policies have been successful in much of the world, and there are no unique technological or marketplace characteristics in the United States to suggest that they wouldn't also be successful here.

    In order to provide a strong competitive check on wireline broadband, spectrum policy should focus on getting spectrum in the hands of new entrants. Additionally, spectrum policy should be pluralistic and pragmatic, recognizing that unlicensed spectrum uses like WiFi can do as much for broadband adoption as licensed services like 3G. Thus, we recommended to the Commission that it ensure that its spectrum policy promotes competitive entry of new licensed services, promotes unlicensed use, and promotes buildout of already-licensed spectrum.

    The Commission should also act to repair the legal confusion that has followed in the wake of its decision in 2002 to start classifying broadband services as an “information service” rather than as a “telecommunications service.” As the Supreme Court said in its Brand X decision, such a classification is within the FCC's discretion to make. As a matter of common sense, broadband as provided by your ISP is a “communications service.” But it's not only for logic's sake that the FCC should make this classification. It seems pretty clear that the DC Circuit is going to limit the FCC's authority over what it chooses to call “information services.” While this issue came up in the context of the open Internet debate, a limitation of the FCC's authority could reduce its ability to carry out public safety, universal service, and competition reforms. It could even put a legal cloud over much existing FCC policy, such as the requirement that some VoIP providers services offer e911 service.

    While we've been critical of the FCC over the direction of the broadband plan, we're hopeful that the Commission's open process will ensure that the plan moves broadband policy in a positive direction.