FCC Plows Ahead With Broadband Plan Despite Comcast Ruling

The FCC today began the long process of building a regulatory regime for a broadband-centric — as opposed to telephone-centric — communications world during an open meeting in which it sought comments on several sweeping policy changes, including reforming the federal telecommunications subsidy for providing rural telephone access. Even as the FCC issues these notices and requests for comments, however, Washington policy experts are still wondering when the FCC will take action to affirm its authority to implement some aspects of the broadband plan. Is the FCC blithely ignoring reality or is it just that confident?

During the first week of April a federal appellate court ruled that the FCC was wrong to chastise Comcast (s cmcsa) for throttling P2P packets because it did not ground its decision-making in the proper authority. The ruling has the effect of putting the FCC in limbo (GigaOM Pro, sub req’d) as to whether or not it has the authority to compel high-speed Internet service providers to follow some of its regulations.

FCC Chairman Julius Genachowski opened today’s meeting by saying he believes the agency has the full legal authority to move forward with these proceedings despite the Comcast ruling, but that’s what the FCC has been saying since the decision was handed down during the first week of April, and even today that authority was questioned by a fellow commissioner.

The FCC then voted on  six proposals, yielding:

  • It approved a Notice of Proposed Rulemaking and request for comments on reforming the Universal Service Fund so the program fund would be used for advancing the growth of high-speed Internet access to rural areas as opposed to supporting voice telephone lines.
  • It approved a change in its previous rules on wireless voice roaming, which forces carriers to automatically allow voice calls to roam, and it issued a Notice of Proposed Rulemaking on wireless data roaming in order to see if it’s feasible for wireless network providers to make it as easy for subscribers to roam on data networks in the U.S. as it is for voice.
  • It approved two proceedings related to opening set-top-boxes to allow open cable boxes that could access cable networks and the Internet, leading to greater competition for television programming, and for hardware to access video content.
  • It approved a Notice of Inquiry seeking comments on how to create fail-proof and resilient broadband networks in case of a natural disaster. One of the  current qualms over IP communication is that it’s not as reliable as the copper telephone networks in case of a disaster.
  • It approved a Notice of Inquiry asking for comments on whether the FCC should create a cyber security program.

But during this decision-making process the issue of the FCC’s authority to implement its plans was challenged by Robert McDowell, a Republican commissioner, who questioned the FCC’s authority to require wireless network operators to automatically open their networks to roaming in the wake of the Comcast decision.

Which indicates to me that when the FCC has to implement anything difficult or controversial, the issue of its authority will come up again and again — both from lobbyists and later through the courts. So the real question is as the FCC tries to implement a new broadband-centric regulatory regime, when is going to take the time to clear up these lingering questions?