FCC Broadband Plan

Introduction

As other countries have begun developing their strategic visions for broadband services in recent years, in 2009 the U.S. Congress directed the Federal Communications Commission (FCC) to prepare a plan to ensure that every American has "access to broadband capability." The FCC has now delivered its National Broadband Plan to Congress on March 16, 2010, setting an ambitious broadband agenda and national benchmarks for the next 10 years. Several European nations have also released their plans - the French digital plan, France Numérique 2012, was issued in October 2008, the Germany Broadband Strategy was announced in February 2009, and the UK Digital Britain Report was released in June 2009.

The FCC's 356-page report (plus appendices) sets many ambitious goals and recommendations, including an overarching national benchmark of "100 squared" -- 100 mbps in 100 million homes and businesses by 2020. The plan also states that the U.S. should lead the world in mobile innovation with the fastest and most extensive wireless network. Many proposals will require new legislation as well as new funding, and should provide business opportunities for network operators, content and application providers, service providers, and equipment vendors in the next decade.

The Plan's principal recommendations are in five specific areas, including: (1) reforming the universal service and intercarrier compensation programs to transition to funding for broadband services; (2) encouraging and improving broadband adoption through new programs; (3) establishing pro-competition policies to foster competition across the broadband ecosystem and enhance consumer transparency and privacy; (4) reforming spectrum management and infrastructure policies and making 500 MHz of spectrum available within the next 10 years; and (5) using broadband to facilitate several national purposes, such as health care, education, smart grid, environmental, government reform, and public safety goals.

Three partners from Hogan & Hartson's Washington D.C. office take a closer look at three areas where the FCC formulated recommendations to enhance broadband in areas outside the core authority of telecom regulation: smart grids, education, and health care.

The full National Broadband Plan can be accessed here.

FCC Broadband Plan Promotes Increased Smart Grid Deployment and Energy Efficiency

Chapter 12 of the National Broadband Plan is dedicated to energy and environmental issues, with a significant focus on Smart Grid technology. The Plan's key recommendations are discussed below.

Reliability and Resiliency

The Plan recommends that the FCC start a proceeding to explore the reliability and resiliency of commercial broadband communications networks. The Plan notes that commercial networks - especially wireless broadband networks - can be adapted to serve more mission-critical needs with increased reliability and resiliency features. In addition, the Plan notes that a more reliable network would also benefit homeland security, public safety, businesses, and consumers.

Removing Financial Disincentives

The Plan encourages States to reduce impediments and financial disincentives to using commercial service providers for Smart Grid communications. As discussed in the Plan, rate-of-return utilities have a guaranteed return on investments in their own networks but can only pass through the expense of purchasing commercial services. State regulators should evaluate utility network requirements and commercial alternatives before authorizing a rate of return on private communications systems, and they should also consider letting recurring network operating costs qualify for a rate of return similar to capitalized utility-built networks.

NERC Clarifications

The Plan calls for the North American Electrical Reliability Corporation ("NERC") to clarify its Critical Infrastructure Protection ("CIP") security requirements and provide utilities more explicit guidance about the use of commercial and other shared networks for critical communications and whether such networks are suitable for grid control communications. NERC should also clarify how its CIP requirements will coexist with the National Institute of Standards and Technology's ("NIST") cybersecurity standards.

Access to Public Safety Broadband Network

The Plan states that Congress should consider amending the Communications Act to enable utilities to use the proposed public safety 700 MHz wireless broadband network. Their use would be subordinated to the communications of traditionally defined public safety services. Moreover, at the sole discretion of the public safety broadband licensee, utilities should also be able to purchase service on the public safety network, contribute capital funds and infrastructure, or be the operator of a joint network.

Additional Spectrum Opportunities and Interoperability

The Plan asks NTIA and the FCC to continue efforts to identify new uses for federal spectrum and consider the requirements of the Smart Grid. The Plan asserts that a nationwide spectrum band for Smart Grid networks would speed the deployment of a standardized, interoperable broadband Smart Grid and would also promote vendor competition and lower equipment costs. The Plan also notes that any new broadband network built in the identified spectrum should be required to meet standards of interoperability, customer data accessibility, privacy and security, and that use of that specific spectrum band should not be mandated. Regarding interoperability, we note that after the Plan was released, speakers at a recent wireless industry panel expressed disagreement over whether government regulators should select a specific technology standard for Smart Grid deployments. While some noted the inefficiency of today's patchwork deployments utilizing different technologies, others expressed skepticism over government technology mandates and instead encouraged regulators to let market forces decide the "winning" technologies.

Federal Policy

The Plan encourages the U.S. Department of Energy ("DOE"), in collaboration with the FCC, to study the communications requirements of electric utilities to inform federal Smart Grid policy.

Consumer Privacy and Usage Data

The Plan urges States to require electric utilities to provide consumers access to, and control of, their own digital energy information, including real-time information from smart meters and historical consumption, price and bill data over the Internet. The Plan states that consumers and their authorized third parties must have secure, non-discriminatory access to energy data in standardized, machine-readable formats and that data should be made available in the same granular form in which it is collected, in as close to real-time as possible. Public utilities commissions ("PUCs") should mandate data accessibility as part of Smart Grid rate cases, and by the end of 2010, every state PUC should require its regulated investor-owned utilities to provide historical consumption, price and bill data over the Internet in machine-readable, standardized formats. By the end of 2011, every investor-owned utility should develop and implement this capability. If States fail to develop reasonable policies over the next 18 months, the Plan asks Congress to consider national legislation to cover consumer privacy and the accessibility of energy data.

Data Standards

The Plan asks the Federal Energy Regulatory Commission ("FERC") to adopt consumer digital data accessibility and control standards as a model for the states. It also states that DOE should consider consumer data accessibility policies when evaluating Smart Grid grant applications, report on states' progress toward enacting consumer data accessibility, and develop best practices guidance for states.

Smart Grid Loans

The Rural Utilities Service ("RUS") should make Smart Grid loans to rural electric cooperatives a priority, including integrated Smart Gridbroadband projects. RUS should favor Smart Grid projects from states and utilities with strong consumer data accessibility policies.

Communications Industry Efficiency

The Plan calls for the FCC to start a Notice of Inquiry to improve the energy efficiency and environmental impact of the communications industry. The proceeding should examine data center energy efficiency, the use of renewable power for communications networks, and the steps companies can take to reduce their carbon emissions. It should also study how service providers can impact the energy usage of peripherals in the home (e.g., mobile phone chargers).

Government Efficiency

The Plan encourages the federal government to take a leadership role in improving the energy efficiency of its data centers. It should meter energy use in all federal data centers as soon as practicable and should set a goal of earning the ENERGY STAR for all eligible data centers that it operates. In addition, DOE should consider and report on whether (and if so, how) the government can go beyond ENERGY STAR savings.

FCC Broadband Plan Education Recommendations

Chapter 11 of the report focuses on broadband and education, with 25 recommendations, many directed to the Department of Education. The following are the key education recommendations.  

Standards for Government Documents  

The Plan recommends that the Department of Education establish standards by March 2011 for locating, sharing, and licensing digital educational content that the U.S. government develops or sponsors. (This is the only deadline set in the plan and presumably adopted in consultation with the Department). It also recommends that any federal investment in digital educational content be made under licenses that permit free access and derivative commercial use.  

Digital Copyright  

The Plan recommends that the Department recommend that textbook vendors also sell digital versions of their printed materials. Similarly, it urges Congress to amend the copyright laws to encourage copyright holders to grant educational digital rights of use (e.g., allowing free use by educators of Beatles lyrics to promote digital literacy). It proposes a new copyright notice to allow owners to authorize these educational uses while reserving other rights.  

It also urges the Department to consider investing in open licensed and public domain software for online learning.  

Expanding Accredited Online Learning  

The Plan urges state education departments to permit students in K-12 to take more courses for credit online and permit more online instruction. This would require states to allow credit for courses from teachers not certified in the student's state.

Relatedly, it calls for funding an "ARPA-ED" program to make seed loans and grants to early-stage education companies or nonprofits to develop innovative broadband-enabled online learning.

Digital Literacy

The Plan calls for states to adopt digital literacy standards and for the Department to provide funding to help schools train teachers in digital literacy and programs targeting science, technology, engineering, and math (STEM). (The White house recently announced a $250 million public-private investment for STEM teaching recruitment.)

Student, Financial Records  

The Plan calls on the Department to adopt standards for electronic educational records so that information can be transferred across state lines. The Plan acknowledges the ongoing National Educational Data Model being developed by the Department. It recognizes the need for an authentication strategy as well as updates to student privacy laws.  

Recognizing the difficulty of aggregating publicly available education financial information, the Plan calls for the Department to develop a digital financial data transparency standard to be used by states and local agencies. This will facilitate the public's ability to determine home much is spent on education.

E-Rate

The Plan calls for the FCC to adopt a rule allowing for off-hours community use of E-rate funded resources, such as federally subsidized broadband connections to schools. The FCC has already allowed this in individual cases under its waiver policy.

Noting some 200 requests in 2009 for dial-up access funding in the Erate program(!), the Plan calls on the FCC to set goals for minimum broadband connectivity for all schools and libraries. And it recommends the E-rate program make internal connections (e.g., WiFi) as much a funding priority as external connections. It also urges the FCC to grant more flexibility to grantees to use cheaper solutions (e.g., dark fiber) instead of E-rate approved service, when that leads to lower costs.

It urges the FCC to use E-rate funds to support establishing state, regional, Tribal, and local networks to make the program more cost-efficient and address barriers to some Tribal applications.

It also calls for E-rate money to be granted on a competitive basis for the best use of broadband connectivity for the educational experience. And it seeks more E-rate funding to keep up with inflation.  

Wireless Devices  

The Plan endorses funding wireless connectivity to portable devices so learning can occur outside school hours where wireline connectivity is not available. This would be done by providing Priority 1 E-rate discounts for wireless services off campus.  

Community Colleges  

The Plan singles out community college broadband connections; only 16 per cent have high speed broadband connections, vs. over 90 per cent for institutions offering a doctorate. It urges Congress to provide funds to connect all community colleges with high speed broadband and maintain that connectivity.

Focus on Health Care

Health care accounts for one-sixth of the U.S. economy and President Obama has made health care reform a key plank in his policy agenda. It is therefore not surprising that the FCC's recently released National Broadband Plan ("NBP") dedicates a full chapter to promoting the use of broadband in health care settings. In its NBP, the FCC states that health IT "plays a key role in advancing policy priorities that improve health and health care delivery."

Although the potential value of broadband is self-evident, there has been a dearth of good data on its effectiveness in preventing and treating disease and reducing health care costs. Therefore, the NBP proposals focus mainly on developing the data necessary to test and support the claim. The NBP also addresses ways the government, including the FCC, can promote increased broadband deployment and adoption among health care providers.

The NBP focuses on four general areas in which broadband can be used effectively in health care settings: (1) electronic health records; (2) video consultation; (3) remote patient monitoring and (4) mobile health applications such as remote diagnostics, patient tracking, body sensor networks, and medical implant devices. Noting the wideranging benefits of broadband for health care delivery, but cognizant of its limited authority to regulate broadly in the field, the FCC focuses most of its discussion on recommendations to Congress and other U.S. agencies (including HHS and CMS, the HHS department that manages the federal health insurance programs for the elderly and indigent) with more direct authority regarding the issue.

Many NBP recommendations focus on improving the incentives for incorporating health IT and broadband into health care delivery in light of the current fee-for-service compensation regime, which discourages efforts to reduce the number of patient doctor and hospital visits and medical procedures. The FCC recommends that HHS identify e-care applications that can be immediately incented through outcomes-based reimbursement, noting that similar methods were used in the American Recovery and Reinvestment Act of 2009 to incent the implementation of electronic health records ("EHR"). It recommends that HHS "define these applications' use cases, data requirements, and associated outcomes (expenditure reductions and health improvements)."

The NBP also suggests that, when testing new payment models, HHS explicitly include e-care applications and evaluate their impact on such models. For nascent e-care applications, it recommends that HHS support further pilot programs and testing to review their suitability for reimbursement. As outcomes-based health care payment reform is developed, the NBP recommends that HHS seek ways to proactively reimburse health care providers for e-care technologies under the current fee-for-service model.

The NBP also identifies a number of existing regulatory impediments to health IT and broadband adoption, including rules requiring hospitals to conduct their own patient assessments and not rely on those of other hospitals; restrictions on physician credentialing and privileging (which place unnecessary burdens on physicians who treat patients remotely); certain U.S. state licensing requirements; limits on electronic prescribing; and the lack of clarity regarding how the FDA and the FCC should collaborate on medical use of general purpose communications devices such as smart phones, video conferencing equipment and wireless routers. With respect to the last concern, it proposes that the FCC and FDA seek formal public input on interagency collaboration within the next 120 days.

The NBP recommends the development of common protocols and standards for the sharing and use of clinical data, citing the lack of such protocols as another reason why health IT has not been used extensively throughout the U.S. According to the FCC, "[c]oordinated standards and protocols will likely increase innovation and discovery within basic science research, clinical research and public health research, helping [to] alleviate many failings of the health care system."

The FCC also cites as a problem the long time it often takes for consumers to access their own medical records, noting, for example, that "patients are not informed of approximately 7 per cent of abnormal lab results." According to the FCC, "[c]onsumers armed with the right information could do a better job managing their own health, demanding higher quality services from their providers and payors and making more informed choices about care." In order to provide better consumer access, the FCC recommends that Congress consider updating the Health Insurance Portability and Accountability Act ("HIPAA") to insure that consumers are authorized to hold their digital lab data.

With respect to broadband connectivity, an area where the FCC does have direct authority, the NBP notes that the emergence of digital health-related data imposes a wide range of communications requirements on health care providers. It estimates the minimum connectivity and quality metrics required to support health IT applications today and in the new future within different health care settings, citing generally the need for 4 Mbps at a single physician practice; 10 Mbps at a small primary care practice or nursing home; 25 Mbps at a large physician practice; 100 Mbps at a hospital and 1,000 Mbps at a large academic medical center. In light of these requirements, the NBP suggests that the most glaring broadband connectivity gap exists among medium and large health care providers (i.e. five or more physicians), including many federally funded providers such as Indian Health Service sites and rural health clinics located outside densely populated areas. "Because of their size and service offerings, these providers often cannot rely on mass-market broadband and must usually purchase [dedicated internet access] solutions," the pricing of which varies significantly from region to region.

The NBP notes that more data is needed to understand and address existing broadband connectivity gaps, including pricing disparities, among health care providers and the most valuable broadband use cases. It recommends that the FCC monitor and refine this information through periodic publication of a Health Care Broadband Status Report. In addition, the NBP makes a number of recommendations for changing existing FCC programs that it believes will help to spur broadband adoption, including:

  • Reforming a set of dedicated universal service programs focused on spurring broadband adoption by health care providers, including the FCC's existing Rural Health Care Program ("RHCP"), which subsidizes the rates paid by rural health care providers for connectivity and provides some support for network deployment.
  • Re-examining RHCP rules that restrict universal service funds from being used by for-profit health care providers and considering the funding of for-profit "safety net" providers.
  • Replacing the FCC's existing Internet Access Fund with a Health Care Broadband Access Fund, allowing the new fund to support urban as well as rural facilities, according to need, and increasing the existing 25 per cent subsidy for eligible entities.
  • Creating a Health Care Broadband Infrastructure Fund to subsidize network deployment to health care delivery locations where existing networks are insufficient. In this connection, the NBP notes that data due to become available soon as a result of federal broadband mapping efforts should be helpful in identifying areas of need.
  • Authorizing participation in the FCC's health care broadband adoption and network deployment programs by long-term care facilities, off-site administrative offices, data centers and similar locations, and making some "last resort" for-profits eligible for program funding.
  • Seeking to better align FCC initiatives and programs with HHS meaningful use criteria to promote efficiency and soliciting public comment from the public to determine the best metrics for assessing and evaluating subsidized projects.
  • Providing additional support to those health care providers that are the most successful in utilizing broadband in a manner that improves patient outcomes.  

The Obama Administration has staked a lot of its credibility on improving the U.S. health care system. Technological innovation and broadband connectivity will be key to this effort. In recognition of this fact, the FCC's NBP places particular emphasis on ways to incentivize the use of broadband through both existing HHS programs and targeted FCC initiatives. As the FCC begins the process of implementing the NBP, we will continue to monitor health care-related aspects and report on significant developments.