Upcoming election portends action on broadband

By Danny Adams

With the certainty that a new Presidential Administration will be sworn in next January, and the apparent possibility that it will be a Democratic one, many telecommunications policy initiatives will percolate up over the coming months. Given that 2008 is a major election year, only the most non-controversial of these will pass as many legislators will be campaigning and business in Congress will virtually come to a halt for the year as of early August. While not many legislative proposals will pass in this environment, much of the work will be done this year and bills made ready for speedy action early in 2009 after the inauguration.

High on the list of priorities is broadband policy. One indicator of what to expect is a bill introduced in the House by Congressmen Ed Markey (D-Mass) and Chip Pickering (R-Miss) addressing net neutrality. Within 90 days of enactment, this law would mandate that the FCC initiate an inquiry on broadband services and consumer rights. The agency would be required to review such things as compliance with its previously stated principles of network neutrality, whether broadband service providers vary their charges based on quality of service or content, and the network management practices of broadband companies.

Despite the bipartisan sponsorship of the bill, not every member of the House Telecommunications and Internet subcommittee is enthusiastic. Congressman Cliff Stearns (R-Fla), ranking minority member on the subcommittee, indicated his belief that the proposal will need extensive hearings and study before it becomes law. And the US Telecom Association, a group of large carriers, has stated opposition to the bill, as has CTIA, the wireless carrier association. Both groups contend that the new law is unnecessary. The controversy suggests that the bill will not see passage this year, but may be a vehicle to create a record for legislation in 2009.

The focus on broadband network management practices has been propelled by alleged blocking activities of Comcast and Verizon. The FCC started an investigation of Comcast’s policies in January, after complaints were filed concerning Comcast’s blocking of uploads of peer-to-peer file sharing using the BitTorrent application. Comcast has stated that it was only managing network peak loading issues, something it has a right to do. Others have implied they believe it could be interference with downloading of movies in competition with Comcast’s other services. Verizon’s controversy arose when it blocked a wireless text ad being used by an abortion rights group. Verizon quickly reversed the decision and allowed the text to be sent, but not before it created controversy around the concept of wireless carrier censorship of content.

These two events, one blocking an application, the other blocking a message based on its content, have caused a substantial reaction. A February 25 forum at Harvard University which included FCC Chairman Martin, Congressman Markey, and speakers from Comcast, Verizon and certain consumer groups, featured discussion of the issue. The network providers argued that there were no nefarious motives and no need for further government action; the consumer groups argued that these events illustrate that there is a danger that carriers will use their position to compete unfairly in other applications or to censor content; the regulators and legislators said these are very important issues and they will be watching closely.

Another aspect of broadband policy which will get attention is the speed of deployment throughout the U.S. A January 31 report from the National Telecommunications and Information Administration (an arm of the U.S. Department of Commerce) concluded that universal, affordable broadband service has been achieved. The report concluded that U.S. broadband has grown from 6.8 million lines in December 2000 to 82.5 million lines in December 2006. The NTIA report concluded that, while there is more work to be done, President Bush’s goal of universal access to broadband has been accomplished.

Democratic FCC Commissioner Michael Copps was not convinced. He questioned both the accuracy of the data used in the study (much of which came from the FCC) and the conclusions drawn from the data by NTIA. FCC Chairman Martin defended the accuracy of the data that came from his agency. However, Commissioner Copps stated that the U.S. has fallen short in both the speed of broadband connections being made available and the price that consumers must pay for those services. And he said these concerns exist in urban areas as well as rural ones. If there is a Democratic Administration next year, the obvious difference in tone could become very significant as the FCC is tasked with reviewing national broadband policies.

Wireless communications is another area that is receiving attention from legislators. The courts have ruled that State authorities have the jurisdiction to review items such as wireless carrier line item billing and early termination fee disclosures. This has motivated the carriers to seek expanded federal preemption of state oversight. (Currently the states are prohibited from regulating carrier rates or market entry, but the courts ruled that “rates” do not include bill format or presentation.)

Congressman Markey is working on a bill for the House which will give the carriers the preemption of state regulation which they seek. It also will contain consumer safeguards, however, so as not to be seen as ignoring the consumer issues raised by the states. The state agencies are likely to oppose any such preemption legislation.

Another area of interest in state preemption is the entry of municipal governments into the telecom marketplace. In response to several cities seeking to build WiMax or similar systems to provide universal Internet access, several states (encouraged by the carriers who sell Internet access) passed laws against such activities by municipalities. Congressman Markey’s bill may also include federal preemption of such state laws, allowing municipalities back into the market. A similar bill was introduced in the Senate last Fall. A Democratic Administration would seem to be more likely than a Republican one to sign these preemption bills into law, but Sen. McCain was supportive of the Senate bill as well.

While 2008 is unlikely to see much legislation passed by Congress, it will provide much of the groundwork for new laws to be enacted in 2009. Those who are interested or affected should pay attention this year and not wait for next.

article originally published at http://www.ipbusinessmag.com/articles.php?issue_id=59&article_id=370.

The media's job is to interest the public in the public interest. -John Dewey