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What We Won In The National Broadband Plan

March 17, 2010 , , , ,

So now we’ve had National Broadband Plan Day!. And, despite undeniable flaws and places where the Plan Drafters wussed out/”avoided controversy,” The Plan looks pretty damn good, actually.

Let me stress that: Pretty . . . Damn . . . Good! Not “oh well, I guess we need to make the best of it” or “it does some good stuff and has a lot of garbage.” I mean that, in a lot of real ways – including the horrible, brutally geeky, detail-oriented and unsexy ways that focus on things like pole attachments and duct work – this plan lays a good foundation to promote competition, promote deployment, and try some pretty courageous, novel and controversial thing to put this country on the road to Kick Ass Broadband Infrastructure For All, as opposed to merely adequate broadband infrastructure for some.

No, I did not get all I want. No one ever does. On some issues, such as structural separation, we came up empty. On other issues, such as forcing the Bells to make their old copper lines available to rivals, the Plan wusses out rather than swinging for the bleachers. But there is a huge difference between “we did not get everything we thought would make this plan fantastic” and “it is a worthless fetid steaming piece of refuse.” And, as we’ve always known, the real fun begins with the numerous proceedings the Plan recommends and which the full Commission must vote to begin.

I'll do a quick tour of what I like, then circle round to the various and sundry objections. But even before that, allow me to point folks back to me first Five Minutes With Harold Feld for a brief review of what the National Broadband Plan is and what it's supposed to do.

What I Like

Competition

First, the Plan starts by putting competition front and center. That was not previewed by Genachowski in his Preview Tour, leading to a fair amount of speculation that there would be nothing in the plan to offend the incumbent providers – or that it would only focus on releasing more spectrum for auction.

I’ll get back to spectrum in a moment. In addition to spectrum, the Plan:

  1. Focuses on improving wholesale competition through special access reform and a general review of wholesale policies. This potentially includes requiring telcos to make copper loops available to rivals instead of “retiring” them after a fiber build. Alas, the Plan is wimpier on this recommendation than we recommended, but it’s in there and I hope we can improve it during the follow up proceedings.

  2. We get our set-top box proceeding, with actual deadlines to get this stuff done.

  3. Recognizes privacy, disclosure, and consumer protection as key elements of competition policy as well as “nice stuff.”

On wireless policy, the plan does not touch the “pure” CMRS issues like early termination fees, but does:

  1. Unlicensed spectrum While auctioning spectrum remains a focus (in part, as I predicted, for revenue reasons), the plan makes a major advance in policy by acknowledging the vital role of unlicensed spectrum as an input to competition. In addition to recommending a swift conclusion of the broadcast white spaces proceeding and generally increasing opportunities for such “opportunistic sharing,” the Plan recommends finding a new contiguous band of spectrum for unlicensed as primary use rather than as a secondary use/underlay (the current system). This would potentially allow far greater power levels for unlicensed spectrum than currently allowed in any band, a big win for wireless ISPs and community wireless networks.

  2. Open the door to explore other options. We at PK having been pushing for a rethink of spectrum access policies for awhile now, with an emphasis on rethinking how we manage federal spectrum. The Plan opens that discussion. Granted, it doesn’t get very far, but we are pushing a lot of new ideas that will require some serious discussion. The Plan recommends having that discussion, which is what we want.
    In other important areas:

  3. Recognizes the legal authority questions we’ve been raising and promises to address them (no, it doesn’t say how, but I don’t expect that at this stage).

  4. USF Reform to promote broadband build out and adoption. OK, this was a gimme, but still good to see.

  5. Recognition of status of Native Americans as sovereign tribes with unique needs in the spectrum section.

  6. Solid on adoption, civic engagement, and all that other good stuff the statute actually tells the FCC to develop for the Plan

  7. Good start on benchmarks and data collection, which is one of the vitally important and utterly geeky things near and dear to my heart.

  8. Appropriate restraint on copyright language.

  9. Good on local government providing broadband services.

That’s from a quick scan.

But What About All The Stuff We Didn't Get, How The Incumbents Are Dancing In the Streets, Etc.

I will absolutely agree with critics, including Commissioner Copps and Commissioner Clyburn, who rightly point out that the Report ducks a lot of the hard questions on things like last-mile competition (where the report describes a duopoly for last-mile, praises the power of competition, and then suddenly moves on to the next topic). But I cannot agree with a number of my friends who believe that we can accomplish nothing until we’ve snuffed out incumbent influence. Instead, I’m going to refer back to a sermon I’ve given a lot since January 2009.

Briefly: It’s not just a question of getting the right people elected and expecting them to come up with the right result. Our system of government requires us to step up and step forward, fully aware of the disproportionate power that money and resources give to those who favor the status quo. But as nothing is handed to us, nothing is handed to those who would define the public interest as that which serves their private ends. We have proven again and again that we can improve the status quo and make a difference in the world. Not in a day, not even in a year, but over time, issue by issue, step by step, proceeding by proceeding.

We did not reach the current status quo in a day. We will not undo it in a day. Nor is the measure of success whether incumbents find things they like or even if they continue to make a profit. I am not in this business to bankrupt telcos or cablecos. I simply want them to work for a living rather than enjoy monopoly rents, and to treat customers as people worthy of respect rather than as assets to be exploited – and I recognize that only through a proper set of rules do such things happen. As I noted at the beginning of this process, those who expected the National Broadband Plan to radically transform our national broadband landscape in one stroke misconceived both the authority delegated and the purpose of this exercise.

This plan provides clay from which we may forge bricks to build a better broadband future. But it does not build that future for us. That job remains to us. Those waiting for the influence of industry lobbyists and money in Washington to vanish will remain disappointed. Those determined to overcome the influence of industry lobbyists and money in Washington should take pride in the steps achieved in the National Broadband Plan, and look ahead to the proceedings that will follow.


About Harold Feld

Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” a guide to what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”