"You may have concluded by now that I think this is a pretty big deal. It really is," remarked interim Federal Communications Commission chair Michael Copps at Wednesday's Open Commission meeting. Copps was talking about the agency's Notice of Inquiry asking for feedback on how to create a National Broadband Plan. "If we do our job well," he told his audience, "this will be the most formative—indeed transformative—proceeding ever in the Commission’s history."

The American Recovery and Reinvestment Act of 2009 requires the FCC to come up with the plan. It asks for public input on "the most effective and efficient ways to ensure broadband access for all Americans," strategies for making it more affordable, the state of high speed Internet progress so far, and advice on how to deploy it to "advance consumer welfare, civic participation," and a dozen other worthy things. The agency has until February 17, 2010 to bang out the report and hand it over to Congress.

Whimsical arbitrage

We want pragmatic, practical, achievable goals, and proposals and recommendations to send up to Congress.

Not everybody was quite as apoplectic as Copps about this NOI. Republican Commissioner Robert M. McDowell offered three cheers in a cagey sort of way. "Let’s all work hard to get it right," he declared. But while the chair said that the inquiry indicates that "we are coming to grips" with the reality "that we have a long way to go to get high-speed, value-laden broadband out to all our citizens," McDowell rolled out a list of statistics suggesting that the country is doing better, broadband-wise, than his Democratic colleague might think. He cited estimates that $80 billion dollars has already been spent on high speed Internet this year, an impressive sum given the bad economic climate.

And: "In order to attract investors to fund the build out of new networks, we must not engage in rulemakings that produce whimsical regulatory arbitrage," McDowell warned. "Rather, we must allow market players to succeed or fail on their own merits and not due to the government picking winners and losers. In short, our rules must allow network operators to have a reasonable opportunity to pay back their investors. That’s the only way to improve existing networks and build new ones."

McDowell's statement doubtless received an amen chorus from U.S. Telecom, one of various trade associations looking warily upon this undertaking and issuing a statement against "unnecessary intervention [that] would slow broadband deployment and the arrival of a wide variety of pro-consumer advances."

Reporters asked Copps about these concerns after the formal meeting. "We want pragmatic, practical, achievable goals, and proposals and recommendations to send up to Congress," he responded. "But we've somehow gotten ourselves into the mind set in the last eight years or so that, unlike all the infrastructure we ever built in this country where we've had a public private partnership to do it," in this case the private sector could roll out broadband alone. "Don't worry. Be happy. Sail on," Copps rhetorically continued. "Let the good times roll. So we've ended up way down in the rankings of nations in our ability to get broadband out."

Meanwhile reform groups hailed the Notice as long overdue. "This is the first time a government agency will take a comprehensive look at the situation and recommend a course of action to remedy our rapidly declining broadband ranking," declared Public Knowledge's Gigi Sohn.

Mildly as I can

But the broadband plan was only one of three data collection measures announced at the meeting. The Commission has also launched a renewed effort in pursuit of its 14th Annual Report to Congress on video competition. The 13th, as everyone at the meeting acknowledged, was a disaster. It was supposed to assess the state of video in 2006, but didn't formally get out until this year.

"We haven't done a very good job recently of meeting our obligation to report annually to Congress on the state of video competition," Copps conceded at the meeting. "That's putting it about as mildly as I can." McDowell put a jovial spin on the mess. "So what's three years among friends?" he asked the laughing crowd.

During that debacle, accusations flew that former FCC Chair Kevin Martin had selectively privileged certain studies concluding that the cable industry has surpassed both tiers of the dreaded "70/70" rule. Congress defines this threshold as so: if 70 percent of households can access cable TV services with 36 or more active channels and 70 percent actually subscribe to them, "the Commission may promulgate any additional rules necessary to provide diversity of information sources."

Angry questions about the means by which Martin concluded that the second part of the 70/70 tier had been reached, and fear and loathing over the prospect that he might try to implement a la carte cable as a result, delayed the report's release until January. Now the FCC is playing catch-up, and will issue a study assessing competition for 2007, 2008, and through the end of June 2009.

The Supplemental Notice of Inquiry the agency released on Tuesday should produce an interesting document. It asks for intel on the impact of the slump on programming investment and the migration of video and advertising from cable and broadcast TV to the Internet. The supplement doesn't take on questions about the "70/70" test—the Commission will tackle that in a later inquiry.

But the cable industry is still pretty nervous about this project. The National Cable and Telecommunications Association recently called burdensome a 70/70-related survey form the FCC proposes to use. "No survey is necessary to prove that a variety of competitors have substantially eroded—and continue to erode—the share of the video distribution marketplace that traditional cable operators serve, which inevitably leads to the conclusion that the second prong of the test is not met," NCTA's comments with the FCC insisted.

We're looking at that



Finally the agency issued an Order and Further Notice of Proposed Rulemaking to boost its collection of data on how much broadcast media minorities and women own. FCC Form 323 now will ask for more information about minority/female ownership from more sources, including stations owned by individuals or "partnerships of natural persons," which it did not before. Low Power TV stations will have to fill out the form too.

And outgoing FCC Commissioner Jonathan Adelstein announced that the Commission will soon launch an inquiry into Arbitron's Portable People Meter system, which critics charge undercounts minority listeners to radio stations. "In light of the challenging economic times and the fact the Commission uses Arbitron's market definitions and rating data, we need to ensure PPM's accuracy and reliability," Adelstein declared. "The Commission cannot be left in the dark."

But while talking to reporters, Copps' remarks seemed to indicate that the investigation isn't in cement yet, referring to Adelstein's "suggestion" for some kind of probe. "So we're looking at that," he added. "I don't have anything to announce today."