The National Broadband Plan (the “Plan”) proposes to increase and enhance broadband deployment across the United States through a combination of policy changes, incentives to private industry to invest in broadband deployment wherever it can be profitable, and direct public investment to serve areas where no commercially viable business case can be made and to serve other public needs such as health care, education and public safety.

Background

Building on the broadband deployment projects at the heart of the American Recovery and Reinvestment Act’s Broadband Technology Opportunities Program (BTOP) and Broadband Initiatives Program (BIP), which are now underway (and slated to end by late 2013), a key threshold issue in the Plan has been how to continue these programs’ progress toward maximum and efficient broadband deployment across the nation, and equally important, how to finance broadband deployment over the longer term, so that these deployment projects and countless others remain economically viable rather than becoming unused “white elephants” that fail to serve the public in the future.

The BTOP program in particular has seen a change in emphasis from a preference for “last mile” projects to households and business to a view that the most cost-effective way to deploy broadband to underserved populations is by building “middle mile” connectivity to libraries, community colleges, healthcare institutions and other “community anchors” from which the public can gain access to high-speed broadband.

Analysis

Fundamentally, the Plan does not call for massive new broadband network deployment projects. Rather, it declares: “Instead of choosing a specific path for broadband in America, this plan describes actions government should take to encourage more private innovation and investment.” These include most notably:

  • Spectrum reform. The Plan essentially takes an “If you make it available, they will come” approach, with respect to both competition and speed, by proposing to reallocate 500 MHz of spectrum (including at least 120 MHz from broadcast uses) to wireless broadband applications, “on a flexible basis, including for unlicensed and opportunistic uses.” The Plan envisions the wide use of spectrum auctions to promote wireless broadband services. It also proposes the auctioning of spectrum for a “free or very low-cost” advertiser-supported wireless broadband service, to close the “affordability barrier” to broadband adoption.
  • Infrastructure. Again, the Plan looks first to private industry: “Government should take steps to improve utilization of existing infrastructure to ensure that network providers have easier access to poles, conduits, ducts and rights-of-way.” Finding that these access costs inflate the costs of broadband deployment by about 20 percent, the Plan recommends that in order to promote broadband deployment, the FCC should adopt rules to set pole attachment rates as low and as close to uniform as possible, consistent with section 224 of the Communications Act, and to lower the cost of the pole attachment “make-ready” process. (For more on this, see our separate advisory, “Focus on Infrastructure Deployment: Utility Poles, Conduit and Rights of Way.”) Further, it recommends that the Department of Transportation make federal financing of highway, road and bridge projects contingent on states and localities allowing joint deployment of conduits by qualified parties.

The Plan asserts, however, that some more direct federal intervention in broadband deployment is necessary, stating these proposals “will not finish the job of connecting people to broadband, since many areas of the country are just too expensive to serve without government support.” Accordingly, the Plan proposes several major governmental initiatives to deploy broadband in areas where private sector investment would be inadequate to achieve the Plan’s objectives:

  • Universal service for broadband. The Plan declares: “Ensuring all people have access to broadband requires the Federal Communications Commission (FCC) to set a national broadband availability target to guide public funding. An initial universalization target of 4 Mbps of actual download speed and 1 Mbps of actual upload speed, with an acceptable quality of service for interactive applications, would ensure universal access.” To achieve this objective, the Plan proposes to transition the current, telephony-centric federal Universal Service Fund (USF) over the next 10 years into a “Connect America Fund” and a wireless “Mobility Fund.” (For more on this, see our separate advisory, “Focus on Overhauling High-Cost Universal Service.")
  • Health Care Broadband Infrastructure Fund. The Plan recommends that, building upon its Rural Healthcare Pilot Program, the FCC establish a Health Care Broadband Infrastructure Fund to subsidize network deployment to health care delivery locations where existing networks are insufficient. The Fund would replace the Rural Health Care component of the current USF program.
  • Community colleges and other community anchor institutions. The Plan proposes that “Congress should consider providing additional public funds to connect all public community colleges with high-speed broadband and maintain that connectivity.” In addition, the Plan suggests that the federal and state governments create a nonprofit coordinating entity, the “Unified Community Anchor Network” (UCAN), that would support and assist community anchor institutions in obtaining and utilizing broadband connectivity, training, applications and services. The UCAN also could be a platform for interconnected networks to share resources and applications.
  • Public safety broadband network. The Plan proposes the creation of a nationwide 700 MHz interoperable public safety wireless broadband communications network, with a funding mechanism to ensure the network is deployed throughout the United States and has necessary coverage, resiliency and redundancy. The Plan estimates the cost of such a network at $12 billion to $16 billion, to be funded jointly by the federal government and state and local governments.

The FCC will be releasing a series of notices to launch each of its future proceedings. Davis Wright Tremaine will be participating in those proceedings on behalf of our clients.