‘Back Door’ To Title II?


Washington —The Federal
Communications Commission’s
determination that broadband
is not being
deployed in a
and timely
fashion” could
provide a backdoor
means of establishing the
agency’s authority to regulate
the Internet.

An FCC official said the July 20
report was just that: A mandatory
report to Congress, and not a justifi
cation of its policy goals.

The commission, though, is
using the report to underscore a
variety of broadband challenges
it’s trying to address in the national
broadband plan, including
reclaiming spectrum from
broadcast-TV stations.

Broadband’s failing grade in the
so-called 706 report to Congress,
meant to gauge the efficency and
effectiveness of the broadband
rollout, was news to the cable and
telco providers who’ve spent billions
to deliver Internet service to
95% of the country. They saw the
FCC as looking at a glass that was
only 5% empty.

On closer look, though, the real
news is that the report could give
the commission a statutory hook
for some of the broadband regulatory
authority it seeks to establish
through Title II reclassification.


It was the first time in six such
reports to Congress on broadband
deployment that the FCC
had concluded the rollout didn’t
pass muster.

In a news release on the report,
the FCC said it “underscores the
need for comprehensive reform
of the Universal Service Fund, innovative
approaches to unleashing
new spectrum, and removal
of barriers to infrastructure investment.”

The commission has argued it
might need to reclassify broadband
in order to reform universal

The FCC’s conclusion was
based in part on a changed definition
of broadband, as well as
what qualified as getting it.

Broadband had been defined at
speeds of 200 Kilobytes per second,
both upstream and down.
The new definition is 4 megabytes
per second downstream
and 1 Mbps upstream.

No longer does the existence of
a single broadband subscriber in
a ZIP code translate to availability
in that entire ZIP code.

The determination also was
based on the FCC’s interpretation
of the statute, which says
the FCC is to determine whether
broadband is being deployed to
“all Americans” in a timely and
reasonable fashion.

The commission even underlined
and italicized the word
“all” in the release, in case anyone
missed it.

According to the release, up to
24 million Americans don’t yet
have broadband as classified under
the new definitions.

What happens when the FCC
concludes broadband is not rolling
along at a sufficient clip? The Telecommunications
Act of 1996 says,
“it shall take immediate action to
accelerate deployment of such capability
by removing barriers to
infrastructure investment and by
promoting competition in the telecommunications

Such action can include “pricecap
regulation, regulatory forbearance,
measures that promote
competition in the local telecommunications
market, or other
regulating methods that remove
barriers to infrastructure investment.”


Some telco and cable lobbyists
agree that sounds like some of
the regulatory underpinning
FCC chairman Julius Genachowski
has been looking for in his
Title II reclassification quest.

The 706 report was actually
due in February, so the timing of
its release in the midst of the Title
II reclassification does seem
to argue for it being a commission
effort to reinforce the need
for regulatory clarity. The FCC argues
it needs such clarity to implement
all the elements of its
national broadband plan without
some being held up by a series of
court challenges to individual elements.

An FCC official who asked not
to be identified said the report
was not being used to as a vehicle
for its policy objectives.

“We didn’t make the 706 finding
in order to help us achieve
our policy goals,” the official said.
“We took seriously the question
Congress asked, and answered it
honestly based on the best data
and analysis. We’re addressing
authority issues in a separate proceeding.
Nothing should be read
into the timing of the report; in
light of the broadband plan, it
took awhile to complete the analysis,
get the item circulated, and
get the votes.”