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Telecom Issues in the 113th Congress

The President has been inaugurated. Congress has been sworn in and the Super Bowl is over. And the new Congress has found itself with a number of telecom and telecom-related subjects that require attention (if not action).

It will not be news to anyone who read these posts that, as the underlying technologies of telecommunications have evolved and advanced, products and services that once fit easily into single-subject silos have morphed to look increasingly like each other, thus providing a significant amount of "issue crossover." Keeping this blending of technologies in mind, what follows is a high-level summary of some issues that are likely (yes, hope springs eternal) to receive consideration in the newly-minted Congress.

Telecom Act Rewrite
As is obvious to anyone even remotely familiar with telecom issues, the changes in service offerings, and the technologies that underlie them, have been dramatic since both the Communications Act of 1934, and the Telecommunications Act of 1996. Major issues under this larger topic umbrella include net neutrality, where current cases are pending in front of the DC Circuit.

Network Neutrality is the long-brewing discussion (with litigation) that requires Internet service providers (ISPs) to treat all Internet content equally, not discriminating either in terms of access or costs, by user, content, site, platform, application, type of attached equipment, and/or mode of communication. Major court cases await decision (the most important of which may be Verizon Communications Inc. v. FCC (D.C. Cir., No. 11-1135, 9/30/11). In the current case, Verizon argues that the FCC's Open Internet rules--which require providers to transmit content created by everyone (within limits related to decency)--violate Verizon's First Amendment rights. Simply put, if Verizon prevails, and the FCC's rules are tossed out, Verizon will be able to block websites and/or treat its web content more favorably than that of its rivals.

In addition, taxes, surcharges and fees have crept to as much as 30% above quoted usage rates for some, (but not all telecom services), so Washington must examine whether IP phone service offerings that substitute for traditional telecom services (voice, data and video) should be subject to existing common carrier regulation. The existing regulations finance the Universal Service Fund (including the Connect America and Mobility funds) among other worthy programs--including 911, Local Number Portability and Telecommunications Relay services. Yet the expense for supporting these worthy endeavors is not equitably shared among users of telecom services today, with customers of traditional telecom services bearing a disproportionate share of the burden. It remains to be seen whether this imbalance will be addressed in the new term.

Spectrum that supports wireless service(s) is a limited commodity. As more people and applications migrate to wireless devices, demand (by definition) increases, while the commodity itself becomes more scarce. This is particularly true for those segments of spectrum that are licensed for use for mobile broadband applications.

At the end of last year, the FCC sought to free up spectrum by moving to require all public safety and business/industrial land mobile radio systems operating in the 150-512 MHz radio bands to stop using 25 kHz efficiency technology, and begin using at least 12.5 kHz efficiency technology; the aim is to compress frequencies used (see This "narrowbanding" order, as it was called, was an attempt to "repack" available spectrum to squeeze out increased capacity from a limited resource.

Additionally, incentive auctions may be held to encourage current broadcast licensees whose spectrum may not be fully or efficiently utilized to give it up in favor of cash or other incentives. This could free up some capacity to support the burgeoning demand for mobile broadband.

The FCC also has yet to decide whether it can impose limits on how much spectrum an individual entity can own--by imposing either spectrum caps (hard limits) or screens (loosely defined as a two-pronged test used by the FCC to determine how much spectrum a specific carrier can control within a certain geographic areas; the "screen" is based upon both market conditions and the capabilities of the particular piece of spectrum in question.) As with everything else in this note, stay tuned.

Broadband deployment will continue to dominate discussions throughout the country as available funds from the FCC's Connect America Fund, the NTIA's BTOP (Broadband Technology Opportunities Program), and the Rural Utilities Service Broadband initiatives all continue to provide opportunities for funding. This funding may come in the form of grants or low-/no-interest loans to locations where broadband deployment might not be considered cost-effective or otherwise practical.

Congress may also opt to address the issue of bandwidth caps that limit the amount of data that a consumer can use over an Internet connection on a monthly basis. While such caps have become standard practice for many ISPs, consumer groups have been quick to complain that such actions discourage Internet use.

With new leadership at the oversight committees in both the House and Senate, a bit of an adjustment period can be anticipated as new players enter the regulatory space. It is possible that the Obama Administration could issue an executive order to not only define the key phrase, "critical infrastructure," but to identify elements of broadband and communications networks that can be used to secure such infrastructure against cyber attacks.

Far from being a novel concept, a draft of this order has been in the works for a while. However, the President may now have the political capital necessary to gain bipartisan support for such action. The government's proposed cybersecurity measures have focused most heavily on compliance with regulation, and have not addressed actual cyber security issues. While, generally speaking, industry bristles at additional regulation, as the risk of cyber attack grows ever stronger, industry players may be forced to work with the Administration to craft a policy that's as palatable as possible.

Other Issues
Other issues that relate to telecom policy include privacy, a rewrite of the Cable Act first passed in 1984 and revised in 1992 and 1996, and issues related to the ever-hot-button issue of online sales tax. These are also expected to come up in the current Congress.

Telecom and Internet technology has evolved at lightning speed, zooming past the rules and regulations designed to support, encourage, monitor and control it, making regulatory revision/intervention more necessary. It is to be hoped that this Congress will be able to cooperate to resolve at least some of these timely and thorny questions before it gets bogged down in its own reelection.