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Telecom Business Alert -- Vol. VII Issue 11

Date: Mar 22, 2010

SPECIAL ISSUE: FCC Delivers National Broadband Plan to Congress On March 16, 2010, the FCC delivered to Congress its much anticipated, 360-page National Broadband Plan (NBP). FCC Chairman Julius Genachowski described the NBP as "a 21st century roadmap to spur economic growth and investment, create jobs, educate our children, protect our citizens, and engage in our democracy." Nevertheless, the NBP was disappointing for many entities, including electric utilities, other critical infrastructure industry entities, and many within the Public Safety community. The NBP only represents FCC staff recommendations, however, and the full Commission would need to vote on and approve any actions to implement the recommendations. Spectrum. In some ways, the spectrum portion of the NBP represents a partial loss of institutional memory on the part of the FCC. Spectrum for private mobile requirements has been allocated for decades. No explanation was provided in the NBP why this policy should not apply to private wireless broadband spectrum requirements. No new spectrum allocations were earmarked for critical infrastructure industries, which requested exclusive broadband spectrum for internal business purposes, but the NBP recommends that the U.S. Department of Energy, together with the FCC, study the communications requirements of electric utilities to inform federal Smart Grid policy. The FCC declined to recommend that Congress allow the 10 MHz D-Block at 700 MHz be allocated to Public Safety. Staff recommends, among other things, making 500 MHz of spectrum available for broadband within 10 years (including 300 MHz for mobile use within 5 years), enabling mechanisms such as incentive auctions to repurpose spectrum, and creating a "spectrum dashboard" to foster an efficient secondary market and ensure greater transparency of spectrum allocation. No mention was made of the shortcomings of the Commission's secondary markets rules. Staff also recommends providing ultra-high-speed broadband connectivity to communities where the federal government has a long-term presence, such as U.S. Department of Defense installations. Pole Attachments. FCC staff made many recommendations relating to pole attachments that in our view would disrupt electric utility operations, jeopardize the safety and reliability of electric distribution systems, result in the loss of hundreds of millions of dollars annually in pole attachment revenues, and require utilities to expend considerable resources. Among other things, staff recommends that the Commission: (1) lower the rates for CLEC and ILEC pole attachments to the FCC cable rate; (2) establish make-ready timelines for wireline and wireless attachments; (3) allow attachers to hire make-ready contractors; (4) establish a schedule of common make-ready charges; (5) eliminate all up-front payments for make-ready; (6) mandate the use of boxing and extension arms; (7) require utilities to compile a database of available poles and attachment space on those poles; and (8) speed up the dispute resolution process to make it easier and faster for attachers to be granted relief. Staff also recommends that Congress revise the Pole Attachment Act by allowing the FCC to regulate poles owned by electric cooperatives and municipalities, and providing national standards for rates, make-ready timelines, and pole attachment databases that every State must follow, even if the State has opted to regulate attachments on its own. To join the "Coalition of Concerned Utilities" in opposing these recommendations, please contact Tom Magee (magee@khlaw.com). Incentives for Universal Availability and Adoption. Staff recommends creating a Connect America Fund and Mobility Fund, transitioning the Universal Service Fund high-cost component and shifting resources to new funds, reforming intercarrier compensation, broadening the USF contribution base, creating mechanisms to make broadband affordable to low-income Americans, expanding the Lifeline and Link-Up programs to broadband, and licensing spectrum with a condition to offer free or low-cost service. Competition. The NBP includes recommendations designed to foster competition, such as benchmarking market-by-market information on broadband pricing and competition, developing disclosure requirements for broadband service providers, and reviewing wholesale competition rules. Policies, Standards and Incentives to Maximize Use. The NBP includes several recommendations to enhance broadband use and spur private sector investment and innovation, including: transforming the FCC's Rural Health Care Program, expanding reimbursement for e-care, and modernizing regulations to remove barriers to e-care; improving public education through e-learning, online content, and improved connectivity to schools and libraries; improving energy efficiency by modernizing the electric grid; expanding use of broadband services and application to stimulate job creation and growth, expanding job training and placement through an online platform, and integrating broadband planning into economic development; allowing state and local governments to purchase broadband from federal contracts; implementing cloud computing, cybersecurity, secure authentication and online service delivery; improving public safety and homeland security by supporting the deployment of a nationwide, interoperable public safety mobile broadband network, promoting innovation in the development and deployment of next-generation 911 and emergency alert systems, and promoting cybersecurity and critical infrastructure survivability. A copy of the NBP is available on the FCC website at http://www.broadband.gov/plan/.

Keller and Heckman Attorneys on the National Broadband Plan:

"There are some staff promises in the Plan that, if implemented, might help the energy industry. Let's hope the Commission follows through with something of real benefit to the industry." 

"It is an open question whether the proposal to secure spectrum for wireless broadband through so called "incentive auctions" of portions or all of the assigned spectrum in licensed television broadcast stations will ever pass the ‘laugh test.'" - Doug Jarrett, Partner, Keller and Heckman LLP

"This slap in the face to utility pole owners requires a forceful response -- join the fight with our Coalition of Concerned Utilities." - Tom Magee, Partner, Keller and Heckman LLP

"The Commission has established several challenging goals for itself, including its recommendation to allocate an additional 300 MHz of spectrum for mobile use within 5 years. As the FCC staff now turns to implementation, private users will need to stay involved in the process to ensure that their interests don't get left out."- Greg Kunkle, Associate, Keller and Heckman LLP

"As Commissioner McDowell noted, the Plan is the first step in a long process. It represents a tremendous amount of hard work but contains no rules and does not carry with it the force and effect of law. Look for the FCC to initiate several rulemaking proceedings in the coming months to begin gradually implementing the Plan." - Wes Wright, Associate, Keller and Heckman LLP

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