The New FCC and the Public Interest Where To Next

1
The New FCC and the Public Interest Where To
Next?

• TATOA Conference 2009
• Houston, Tx.
• Joseph Van Eaton
• August 7, 2009

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
2
Overview

• Your New FCC
• Bellwether Issues for Local Govts?
• PEG
• CTIA Petition
• Broadband
• Protecting Local Interests

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
3
The New FCC
Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
4
Changes?

• Communications Daily Report
• Chairman Genachowski plans to put a substantial
  emphasis on process and ensure in the first
  instance, work is done through FCC bureaus and
  offices
• Immediate result is that the FCC probably
  won't make major policy calls in August.
• Emphasis on broadband - sometimes to the
  exclusion of otherissues considered less time
  sensitive
• Andy Schwartzman of the Media Access Project
  states focus on broadband is going to make it
  hard to maintain momentum on a lot of other
  fronts.

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
5
Bellwether Issues for Local Govt

• Section 621 (franchising) reconsideration
  petition
• In states that adopted franchising rules, can
  PEG fees be used for operating costs?
• Are fees imposed to defray the cost of regulation
  offset against the franchise fee?
• What can PEG fees be used for?
• Petition for Declaratory Ruling, Docket 09-13
• Two cases
• Challenge to ATT Channel 99 Solution
• Challenge to Comcast Digitization of PEG Channels
• Broadband Petition

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
6
Bellwether Issues for Local Govt

• Challenge to ATT Model
• Is ATT obligated to provide a channel that is
  equivalent in quality and accessibility to other
  channels it provides on a commercial basis?
• Challenge to Comcast
• Does PEG have to be on basic?
• Can PEG be provided in a digital format when
  other basic channels are in a digital format?
• In Both Cases
• Can an operator impose cost or other burdens that
  make it more difficult for viewers to receive PEG
  channels?

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
7
Bellwether Issues for Local Govt

• CTIA Petition
• Asserts localities are unreasonably delaying
  deployment of wireless towers
• Asks FCC to establish national deadlines for
  action on zoning applications
• 45 days for collocation
• 75 days for any other application
• Deadlines do not depend on size, location, number
  of towers, or complexity of safety/siting issues

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
8
The National Broadband Plan

• The American Recovery and Reinvestment Act of
  2009, H.R. 1, directed the FCC to produce a
  national broadband plan within one year.
  (Section 6001(k)(1)).
• The FCC released a Notice of Inquiry on April 8,
  2009 in docket 09-51. (FCC 09-31)
• Initial comments filed June 8, 2009.
• Reply comments filed July 21, 2009.
• The FCC launched http//www.broadband.gov

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
9
Can Public Interest Viewpoints Be Reconciled?

?
Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
10
Broad Generalities

• Localities/PEG coming from model
• Where person who owned facilities also controlled
  content BUT
• Localities could create funded public spaces
  within the network, collect rents for use of
  public property
• End user equipment controlled by the network
• Localities control system design/build-out
• Designed to local needs

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
11
Broad Generalities

• Internet coming from model
• Owner of pipe had to provide open,
  non-discriminatory access to all (common carrier)
• Limited owner control over content
• No special rights of access to anyone
• Network universally available,
• Design up to owner anything attached to the
  network
• Controlled at natl/state level
• Subject to local/state taxes

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
12
Broad Generalities

• Public Interest groups focused on broadcast media
  coming from model
• Owner of means of communication (spectrum) is
  government
• It is licensed to broadcasters for no fee BUT
• Broadcaster must ascertain community needs
• Programming must take account of local needs
• License will not be renewed if public obligations
  arent satisfied

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
13
Broad Generalities

• Localities coming from model
• Where person who owned facilities also controlled
  content BUT
• Localities could create funded public spaces
  within the network
• End user equipment controlled by the network
• Localities control system design/build-out
• Designed to local needs
• Internet coming from model
• Owner of pipe had to provide open,
  non-discriminatory access to all (common carrier)
• Limited owner control over content
• No special rights of access to anyone
• Network universally available,
• Design up to owner anything attached to the
  network
• Controlled at natl/state level
• Public Interest groups focused on broadcast media
  coming from model
• Owner of means of communication (spectrum) is
  government
• It is licensed to broadcasters for no fee BUT
• Broadcaster must ascertain community needs
• Programming must take account of local needs
• License will not be renewed if public obligations
  arent satisfied

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
14
What Happens When Models Break Down?

• Only a very small portion of the network must
  comply with common carrier principles
• Wireless control of network equipment
• Broadcasters face limited renewal scrutiny
  consolidation encouraged
• Franchise fees on only a portion of the networks
  revenues what happens with Internet delivery of
  video programming?
• Tax/fee definitions fail to keep up with
  networks/services
• Localism removed by state laws in cable
  broadcasters rarely held to public interest
  obligations

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
15
Proceeding Participants

• Local Franchising Authorities and PEG Groups
• NATOA, Alliance for Community Media (ACM) and
  others
• Industry
• Wireline Verizon, ATT, Level 3, Qwest, USTA
• Wireless CTIA, Verizon Wireless, Sprint Nextel
• Cable Comcast, Cox, Time Warner, NCTA
• Other Google, Clearwire
• Public Interest
• Free Press, New America Foundation, Public
  Knowledge, Media Access Project, Consumer
  Federation of America, Consumers Union

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
16
How Should The FCC Define Broadband Capability?

• NATOA/ACM
• Aspire to 100 megabits per second 1 gigabit per
  second symmetrical, with scalability to 10
  gigabits per second.
• Speeds should be measured by what consumers
  actually receive and support multiple integrated
  voice, video and data applications
• Free Press
• Internet not just as an information service but
  an information service with a telecommunications
  service transport component.
• Comcast
• Basic (256 Kbps downstream and upstream),
• Current Generation (600 Kbps downstream and 55
  Kbps upstream),
• Next Generation (12 Mbps downstream and 2 Mbps
  upstream),
• Next Generation Advanced (50 Mbps downstream and
  10 Mbps upstream)
• Next Generation Commercial (at least 100 Mbps).

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
17
How Effective and Efficient Are Existing
Mechanisms for Broadband Access?

• NATOA/ACM The federal governments almost total
  reliance on market forces has not served the
  nation well. Cable local franchising very
  effectively resulted in broadband accessibility.
  
• Free Press The FCCs deregulatory decisions
  have failed.
• Comcast Marketplace has been remarkably
  successful. 92 of American homes have access to
  cable Internet service.
• Verizon Most Americans have the benefit of real
  broadband competition.
• CTIA Need to preempt local government zoning
  authority over cell towers

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
18
Whats the value of open networks and how
should open be defined?

• NATOA/ACM Consider access, interconnection,
  nondiscrimination, and infrastructure sharing
  requirements. Vigorously enforce open network
  principles.
• Free Press Network neutrality and
  nondiscrimination should be the cornerstones of
  Americas broadband policy, and extend to all
  broadband platforms, including wireless.
• Verizon Committed to openness. FCC should not
  move backwards by imposing a broad
  non-discrimination principle that would
  effectively impose common carrier obligations.
• CTIA FCCs Broadband Policy Statement doesnt
  apply to wireless and should be so extended.
  Non-discrimination will harm networks and
  consumers.

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
19
Broad Agreements, Broad Areas Not Yet Addressed

• Broad agreement industry vision leads nowhere.
• Broad agreement cross-platform rules are
  critical
• Unclear how do we define a public green space?
  Is it necessary?
• Unclear How do you fund a public green space?
• Unclear What is the role of localism? How do we
  assess local needs? Who is responsible for
  satisfying them?

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600
20

• Question is there a cross-platform model that
  can build upon the beneficial elements of all
  our public interest models (including community
  ascertainment requirements) to achieve a sensible
  policy for the broadband age?

Miller Van Eaton P.L.L.C. P Washington, D.C. P
San Francisco, CA. P 202-785-0600