Light FCC Agenda Doesn’t Speak to Commission’s Workload

Earlier this year and in late 2010, critics raised concerns about the slow progress of the FCC on implementing the National Broadband Plan and in moving ahead on other key issues (CD Jan 3 p1). But March and April saw a flurry of open meeting activity as the FCC took on Universal Service Fund reform, data roaming, rates and enforcement rules for utility pole attachments and other items tied to the broadband plan.

A few industry observers said they were surprised by the relative lightness of the commission’s agenda for the second meeting in a row. Most of the communications lawyers and government officials we spoke to said most of the action at the FCC at this point is on preparing a few major orders for later votes. Free Press, which has been one of Genachowski’s strongest critics from the left, declined to comment.

Work continues on a USTelecom-brokered agreement on changes to the Universal Service Fund and the intercarrier compensation regimes, with action expected as early as August. Other controversial items, such at the AT&T/T-Mobile merger, the Wireless Competition Report, the multichannel video program distributor competition report and changes to retransmission consent rules are still in the pleading cycle, or otherwise not ready for commission action. “This is the calm before several storms,” said Information Technology & Innovation Foundation Senior Fellow Richard Bennett.

"Things don’t get done very quickly during the summer,” and this year isn’t likely to be an exception, said cable lawyer Christopher Redding of Dow Lohnes. “No news is good news for the cable industry, in some respects,” Redding said. “There can be a lot of mischief created under certain circumstances now.”

Several industry officials welcomed the light agendas. “It doesn’t bother me that there are no high-profile items on the agenda,” said Randolph May, president of the Free State Foundation. “The public is often better served when the commission is doing less rather than more. I'm heartened that Chairman Genachowski now seems ready to push for USF reform, and this should be the agency’s priority for the next few months until the job is done."

"It is important to recognize that most of the work of the commission can be both vitally important and breathtakingly boring. It’s not surprising for a meeting to contain items that are not politically contentious,” said Public Knowledge Legal Director Harold Feld. “At the same time, it is disappointing that yet another month has gone by with AllVid on hold. We have once again reached the point where no one is saying anything new. It is clear that, no surprise, the companies on whom Congress imposed the mandate to open their platform would prefer the FCC take no action to enforce that mandate.” It’s “time for the FCC to decide if it plans to step up or retreat,” Feld said.

Rural Cellular Association President Steve Berry said petitions to deny the AT&T/T-Mobile merger are due May 31 and work continues on a USF/ICC order, as witnessed by last week’s field hearing in Omaha, Neb. Genachowski must decide what to push forward on with the pending departure of Commissioner Meredith Baker, Berry said. “The chairman needs to decide how much and when does he -- if at all -- start a string of 3-1 votes,” he said.

A second official who represents small carriers said working through USF issues is difficult and time consuming for FCC staff. “Replies are due next week, and telcos are pouring into the FCC with their data to show the NPRM’s impact on their companies,” the official said. It does bog the process down a bit when you try to go from high level principles to actual operational mechanics. I still sense a level of franticness to complete something” before Democratic Commissioner Michael Copps leaves the FCC, late this year or early in 2012.

"I wouldn’t read too much one way or the other into the composition of items on the FCC’s June agenda,” said Medley Global Advisors analyst Jeff Silva. “The truth is, much of the commission’s important business is simply not that sexy. Big policy items tend to be complicated and politically sensitive, and therefore tend to take longer to decide. Having said that, to the extent there’s any lull in big-ticket decision-making in the near term, it would be understandable in light of the likely significant agency resources being channeled to USF/ICC reform and the AT&T/T-Mobile merger review."

"What we're preparing for is a number of significant orders that we'll see either late Q3 or Q4,” said Andrew Lipman of Bingham. But “I don’t think there going to lose a step in terms of timing with a 4-person commission, and over the past decades they've frequently operated” without the full slate, he said. USF and intercarrier compensation reforms will take up a lot of attention at the FCC in the coming months, Lipman said: Consideration of whether LightSquared’s wireless service will cause impermissible levels of interference will take time, too.

On media items, a 3-1 commission won’t slow work much further, with a closely watched AllVid rulemaking pending, communications lawyers said. Some at the commission and in industry had expected proposed rules on connecting all pay-TV systems to consumer electronics would be ready for a June 9 vote. It’s now uncertain when that will happen. “We continue to be disappointed by the snail’s pace on the release” of a rulemaking notice, said Julie Kearney, vice president of the CEA.

Individual commissioners, apart from Genachowski, haven’t seemed to be the determinants of how quickly rulemakings get a vote, several communications lawyers noted. That applies to moving forward with a review of media ownership rules that was due to be completed in 2010, some said. Baker’s resignation isn’t likely to affect the timing of commission work on reallocating spectrum from TV stations to wireless broadband, because a lot of the real “heavy lifting” is in flux and depends on legislation, an industry lawyer said.

"I don’t think that this is likely to have a significant impact one way or other on the timing of things,” said Media Access Project Senior Vice President Andrew Schwartzman. “Commissioners tend to respond in a timely fashion” once items circulate, he said. “The real problem is getting stuff up from the bureaus,” Schwartzman added: “The real difficulty is traffic management.”