Looking Ahead to 2013…

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Over the course of the last several weeks, we at the Phoenix Center held Part I and Part II of our Annual U.S. Telecoms Symposium.  Part I, held on December 6th, focused on the impact of the recent election on U.S. broadband policy; while the more “wonky” Part II, held last week on January 3rd, focused on emerging issues in broadband policy for 2013.  As always, we had a fantastic array of speakers at both events, and the presentations were excellent.  While interested folks are welcome to watch the video of the full proceedings on-line (Part I may be viewed here; while Part II may be viewed here), I thought I would use our first @lawandeconomics post of 2013 to highlight (at least what I believe to be) some of the major take-always from our two Symposia.

First, as I argued in a blog last fall and as our speakers reiterated at our Symposia, we can no longer postpone discussion of how to undertake the complex process of developing a regulatory paradigm to facilitate the IP Transition.  However, after listening to our speakers talk about this issue, I was again reminded of the enormity of the task ahead.  To wit, while much of the debate has focused on the “big picture” issues such as special access, petitions for non-dominance of “voice” service, etc., our speakers highlighted that many of the issues raised by the IP Transition can also reach far down into the weeds into seemingly innocuous policy problems (e.g., text to 911).

Equally as important, many of our speakers argued that we should complete the IP Transition within a reasonable time frame.  As Blair Levin, former head of the FCC’s National Broadband Plan observed, “The government owes it to industry to tell companies when they can stop investing in obsolete infrastructure.”  As I wrote in a previous blog, the Commission seems to be on the right track in this regard by establishing an agency-wide “Technology Transitions Policy Task Force.”  I also argued that the agency should heed the recommendation of the National Broadband Plan and establish a single proceeding so that we can work through these complex issues in a comprehensive and holistic fashion.  Unfortunately, the jury is still out on that one.

Second, spectrum issues will also continue to dominate the policy agenda for 2013.  At the top of the list will be the implementation of the voluntary incentive auctions required by the Middle Class Tax Relief Act.   Also at the top of the list is developing a good mechanism to help make additional government spectrum available for commercial use.  Panelists were consistent in their view that the clearing of government spectrum is essential, and the sharing-only approach proposed in the PCAST Report is untenable.  As with the IP Transition, given the enormity and complexity of the task, there are again no easy answers here.

Third, our speakers made clear that the D.C. Circuit’s forthcoming decision on whether to uphold the FCC’s net neutrality rules will have a significant impact going forward.  Indeed, both Commissioners McDowell and Pai went out of their way to remind our audience that the Commission’s Title II reclassification docket remains open as a potential backstop approach to Internet regulation should the D.C. Circuit decide to strike down the current rules.  Along the same lines, there was general consensus that should the D.C. Circuit uphold the FCC, that decision—coupled with such decisions as the D.C. Circuit’s recent decision to uphold the FCC’s Data Roaming Order and the 10th Circuit’s decision to uphold the agency’s Phoenix Forbearance Order—could provide the Commission with significant legal authority for regulation of advanced services.  (And, as we have shown in our research, if the agency has such authority, there is a good possibility that it will seek to use it.)

Finally, perhaps our biggest takeaway is that given all of the complex issues highlighted above, it is apparent that we are going to need extremely strong and creative leadership more than ever at the FCC.  Among other things, this will require the agency to re-double its efforts to focus on the merits and less on the politics.  Finding such high-quality leadership makes issues like IP transitions and spectrum exhaust look simple, but hope springs eternal…


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