Critics urge FCC to forget Net neutrality

CHICAGO--Telecom policy experts say it is time for the Federal Communications Commission to put Net neutrality issues to rest so that the agency can move on to addressing other items on its agenda, such as implementing the National Broadband plan.

A representative from AT&T was joined by former FCC Chairman Kevin Martin and other policy wonks here on a panel at the 4G World trade show to discuss the FCC's progress on implementing the National Broadband Plan.

Robert Quinn, senior vice president of regulatory affairs for AT&T, said progress on achieving goals set out in the plan presented to Congress earlier this year have been painfully slow.

"We are frustrated at the slow progress," he said. "The Broadband Plan does a good job of isolating the problems, but now there are rule-making proceedings spread over the next 18 months. And we have no idea when these will turn into real rules."

He went on to say that many of the issues that the FCC is trying to deal with as part of this plan are complex and will not be handled easily. But he chided the agency for spending too much time on the Net neutrality issue instead of writing policies that can get broadband deployed more quickly throughout the nation.

"Some of these issues like Universal Service reform are complicated," he said. "They've perplexed the agency for 20 years. So it's not easy to deal with them. But how did the FCC spend its summer vacation? It worked on Net neutrality."

The FCC has been working on making its principles for protecting the openness of the Internet into formal regulation for months. In short, the FCC and supporters of Net neutrality want rules to ensure that broadband service providers cannot block or degrade traffic or applications on their network to harm competitors or impede consumers' access to lawful content.

But the agency's authority was called into question earlier this year when a U.S. appeals court threw out an FCC ruling forcing Comcast to follow the agency's 2005 Net neutrality principles. The agency responded by coming up with a "third way" approach that it claims will reassert its authority. This approach entails reclassifying broadband traffic and applying some Title II regulations to those services.

Some experts have argued that the Comcast decision also called into question the FCC's authority to deal with many of the items in the National Broadband Plan.

The debate over traffic reclassification and the FCC's authority has caused uncertainty in the market, which many experts say could hamper innovation. Martin, who is now a partner at Patton Boggs a Washington, D.C.-based law firm, said that even debating the traffic reclassification issue could have negative effects on the market.

"The danger of the Title II debate is that it could potentially undermine the balance that has already been struck in classifying broadband, which could jeopardize investment," he said.

Martin argued that the FCC still has plenty of authority under Title I to implement many of the items on its National Broadband Plan agenda.

National Broadband Plan
Congress asked the FCC to come up with the National Broadband Plan as part of the American Recovery and Reinvestment Act passed in February 2009. The idea was for the agency to come up with a policy blueprint for bringing affordable broadband access throughout the U.S., with the goal of creating more jobs for Americans, improving health care, and encouraging energy independence. The agency presented its 360-page report to Congress with several recommendations for lawmakers as well as for the FCC in March.

One of the issues the plan outlines that can be dealt with by the FCC is expanding the $8 billion Universal Service Fund, which provides subsidized phone service throughout the U.S., to also include broadband. The plan also calls on the FCC to make 500MHz of new wireless spectrum available within 10 years for licensed and unlicensed use. The plan recommends that 300MHz of that spectrum should become available within the next five years.

Allocating more spectrum has been at the top of the FCC agenda. But freeing up additional spectrum has also become a hot button political issue since part of the FCC's proposal calls for reallocating about 20MHz of underutilized government spectrum and re-issuing 120 MHz of spectrum from TV broadcasters.

Some progress has been made on some of these major issues. For example, just this month the FCC voted unanimously to allocate a portion of the Universal Service Fund into its new Mobility Fund. This new Mobility Fund is supposed to fund projects that will bring 3G mobile broadband to rural markets that traditionally lack 3G coverage. But AT&T's Quinn believes more can be done.

"It would be a huge symbolic victory if we could just get an order that says that the Universal Service Fund can be used for broadband deployments," he said. "But it hasn't happened yet."

Some progress has also been made on the spectrum front. The FCC also recently voted again on new rules that will open up unused analog TV spectrum for unlicensed wireless broadband use. This spectrum--known as white spaces--sits between TV channels and can be used to help new or existing wireless operators build new services or augment existing ones.

In an interview on the sidelines of the event here Wednesday, Julius Knapp, chief of the FCC's Office of Engineering Technology, said that the white-space spectrum offers a huge opportunity for innovation that has yet to be realized.

"Think of white-space spectrum like the spectrum that was used for Wi-Fi or Bluetooth," he said. "We had no idea what services would come out of it. And now look at how powerful those applications have become."

Waiting for Congress
But the FCC and Congress have been slow to address making available underused spectrum from government agencies and TV broadcasters. Knapp said during a question and answer period after his presentation that part of the hold up in freeing additional spectrum is in the hands of Congress, which must authorize the FCC to start making deals with government agencies and broadcasters for the spectrum.

"We haven't had the legislative authority to do anything on this yet," Knapp said. "So there is nothing that the broadcasters (and government agencies) can sign up for. We've been talking to broadcasters and there is some speculation about the level of interest in our plans."

The FCC has suggested that the government pay current license holders for giving up their spectrum. But former FCC chief Martin believes there are other ways to free up this spectrum more quickly. Specifically, he suggested making it easier for license holders to resell their licenses to other parties. And he also suggested making the rules for how the spectrum is used more flexible to accommodate different services.

"There might be some ways to introduce market incentives that gets this spectrum in the hands of parties that will use it more efficiently even faster than having the spectrum reclaimed and re-auctioned," he said.

In addition to working on implementing the National Broadband Plan, the FCC is still working on drafting Net neutrality regulations. But efforts to create new legislation around Net neutrality have stalled in Congress. Last month, Rep. Joe Barton of Texas, the senior Republican on the U.S. House Energy and Commerce Committee, said he would not support a Net neutrality proposal put forth by Committee Chairman Henry Waxman (D-Calif.)

Waxman introduced a proposal for Net neutrality that would have prohibited wired broadband providers from "unjustly or unreasonably" discriminating against legal Web traffic. The proposal was very similar to one that was put forth by Verizon Wireless and Google last month. Both proposals would have prohibited wireless broadband networks from the same nondiscrimination requirement.

Barton said he couldn't support the proposal because he feels that Congress should be looking for a more permanent solution. Some people have suggested that Congress rewrite all or part of the Communications Act to spell out issues such as Net neutrality and clarify the FCC's authority and role in enforcing regulations and laws as it pertains to the Internet.

Experts on the panel agreed that legislative clarification may be a good idea, but that such action would take too long.

"The FCC simply can't wait for legislation," Martin said.