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The FCCThe FCC’s National Broadband Plan:’s National Broadband Plan:A Preliminary Critique through the Lens ofA Preliminary Critique through the Lens of

Adaptive PolicymakingAdaptive Policymaking

Richard S. WhittRichard S. WhittDirector/Managing Counsel, Telecom and Media PolicyDirector/Managing Counsel, Telecom and Media Policy

Emerging Communications 2011 Emerging Communications 2011San Francisco, CASan Francisco, CA

June 28, 2011June 28, 2011

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I. How We Got HereI. How We Got Here

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“The national broadband plan … shall seek to ensure that all people of the United States have access to broadband capability and shall

establish benchmarks for meeting that goal.”

By March 17, 2010, the FCC was required to submit to the Senate

Commerce Committee and the House Commerce Committee “a report containing a

national broadband plan.”

Congress Speaks…

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… … As The FCC Confronts Big ChallengesAs The FCC Confronts Big Challenges

• Rapidly-changing markets and technologies

• Economics of communications infrastructure

• Lack of timely, relevant, and objective broadband deployment and adoption data

• Shortage of time to develop and adopt a plan

• New leadership and personnel

Congress’ mandate for the FCC to provide a plan to establish national broadband capability and to determine benchmarks was made more challenging by various impediments.

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The FCC’s Plan: Some Key Findings

• Nearly 100 million Americans lack broadband at home today.

• 14 million Americans do not have broadband access even if they want it.

• A wireless spectrum shortage could impede U.S. leadership in wireless mobile broadband services.

• More useful applications, devices, and content are needed to create value for consumers.

• The nation has failed to harness broadband’s power to transform government services, health care, education, public safety, energy conservation, economic development, and other national priorities.

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The FCC’s Plan: Some Key Goals by 2020

• Affordable access to actual download speeds of 100 Mbps & actual

upload speeds of at least 50 Mbps for 100 million homes. • 500 MHz of newly available, additional spectrum for mobile

broadband by 2020, with 300 MHz made available by 2015. • Everyone should have affordable access to robust broadband, and

the means and skills to subscribe. • Every community should have affordable access to at least 1 Gbps

broadband service to anchor institutions. • Every first responder should have access to a nationwide, wireless,

interoperable broadband public safety network. • Everyone should be able to use broadband to support energy-related

applications, including tracking and managing real-time energy consumption.

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Some Current Rulemakings/InquiriesSome Current Rulemakings/Inquiries

• FUSF ReformFUSF Reform

• Intercarrier Compensation ReformIntercarrier Compensation Reform

• CableCARD NoticeCableCARD Notice

• “AllVid” Gateway Proposal

• Strategic Spectrum Plan/AssessmentStrategic Spectrum Plan/Assessment

• Broadcast TV Spectrum InnovationBroadcast TV Spectrum Innovation

• Data Roaming

• Special Access

• TV White Spaces

• Spectrum Sharing/Wireless Backhaul

• Secondary Markets

• Pole Attachments/Rights of Way

• Interconnection Clarification

• Public Safety/D Block

• Broadband Data

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II. Adaptive PolicymakingII. Adaptive Policymaking

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Nine Principles of an Adaptive StanceNine Principles of an Adaptive Stance

Cautious

Macroscopic

Incremental

Experimental

Contextual

Flexible

Provisional

Accountable

Sustainable

Humility is essential.

The big picture.

Evolutionary, not revolutionary.

Necessity for experimentation.

Well-grounded and context-dependent.

The need for flexibility.

Favor reversibility.

Test, monitor, and honor.

Politically adoptable and achievable.

Policymakers are Policymakers are beset by powerful beset by powerful

influences that influences that favor the status favor the status quo over changequo over change

and progress. and progress.

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Institutions: Rules of the GameInstitutions: Rules of the Game

Constitutions

Laws

Regulations

Policies

Co-Regulation

Bully Pulpit

Self-Regulation

Codes of Conduct

Standards

Norms

Degree of form

ality, coercion, accountability, and enforceability.

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Organizations: players of the game.

Bunch of people playing poker

Each player in an entity

(corp, policymaker)

Organizations: Players of the GameOrganizations: Players of the GameInteraction betweenInteraction between

players and rules shapesplayers and rules shapesinstitutional change.institutional change.

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III. A Brief CritiqueIII. A Brief Critique

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Challenges for Policy MakersChallenges for Policy Makers

• Outdated tools

• Outmoded concepts

• Old issue, new guise:

the role of network infrastructure in society

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Some Concerns at the OutsetSome Concerns at the Outset

• “Shoot, ready, aim”

– The Plan suffers as part of the “shoot, ready, aim” approach -- ideally we needed data first, then the policy, and then the money spent. Thanks to Congress and the previous FCC, we got the reverse instead.

• “Alpha or beta”?

– The FCC needs to be serious about treating the Plan as in terminal beta, always learning and iterating and evolving.

• “Top-down”?

– The FCC runs the risk of sounding too much like the top-down specialist, rather than employing a bottom-up approach that relies on states and local communities.

• “Back-loaded”

– The Plan remains largely aspirational; the heavy lift will be in the many proposed implementing rulemakings, which will take many months and even years to resolve.

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Stage 1: Baseline

Assumptions

Stage 2: Overall

Objective

Stage 3: Data

“Mash-ups”

Stage 4: Metric

Screens

Stage 5: Defined

Benchmarks

Stage 6: Resource Analysis

Repeat

Optimal Approach: An Evolving PlanOptimal Approach: An Evolving Plan

We should aim to facilitate an environment that over time stimulates investment and innovation in -- and usage of -- broadband technologies and applications.

The framework should engender a flexible, iterative, and comprehensive process.

Stage 7: Focused

Projects

Stage 8: Interim

Evaluation

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Broadband DeconstructedBroadband Deconstructed

“Communications/transportation/information/entertainment/ interactivity” infrastructure

What it is

What it is notThe Internet.

Internet access.A content delivery system.

A box of widgets.Your vegetables.

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Role of Competition and InnovationRole of Competition and Innovation

• Goal: Creating more competition and innovation

• Problem: wireline duopoly, lack of wireless substitution

• Recommendations: special access reform (middle mile), local competition petitions, access to ROW, data roaming, more spectrum

• Critique

– Despite the fact that the FCC’s own outside consultants found that wholesale networks create choice and competition, the Plan shies away from wrestling with the unbundling/separation issues.

• No structural separation, no unbundling, no ISP open access, no firm commitment to preventing copper retirement

– Does the FCC depend too much on the current broadband market?

• The vertical integration model is largely accepted.

– How the consumer gateways and set top box issues are addressed in the rulemakings will be the big difference in whether the television successfully can become an Internet platform.

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Spectrum PolicySpectrum Policy

• Problem: lack of spectrum allocated for broadband

• Recommendation: allocating 500 MHz by 2020; 300 MHz by 2015

Some observations:

• Talk of repacking the TV spectrum, less than a year after the DTV transition

• Only 20 MHz (at best) of additional unlicensed spectrum

• Reliance on auctions: only benefits the big incumbents?

• Does repurposing broadcaster spectrum amount to replacing free TV with pay TV?

• More shoot, ready, aim?

– Why not first do the full inventory of currently allocated spectrum, so we know exactly what we have and how efficiently it is being used?

– Tools like secondary markets and technological sharing measures through underlays/overlays could help alleviate presumed spectrum shortages.

– Then we should take an inventory of the total potential available spectrum resources, including government spectrum, broadcaster spectrum, AWS III, etc., and determine how best to reallocate for other purposes.

– Does unlicensed get short shrift in the Plan?

• TV White Spaces may be gone if Rockefeller bill is adopted

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And the Big Question: AuthorityAnd the Big Question: Authority

• FCC jurisdiction over broadband?

– The D.C. Circuit’s Comcast decision cast grave doubt over the FCC’s authority to implement some key aspects of the National Broadband Plan.

– The Plan itself relegates the issue to a single page – and assumes such jurisdiction exists.

• Doesn’t the potential success of the Plan rest in large part on whether the FCC even has the authority to carry out its many proposed broadband initiatives?

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Thank You!Thank You!