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Regulatory: Regulation of Communications Under the Obama Administration

In March, the Federal Communications Commission released the National Broadband Plan, which proposed how broadband deployment should be pursued to bring high-speed Internet access to all Americans. The FCC's efforts to implement the plan are one of the most significant regulatory policies developed by the Obama Administration.

The Plan addressed a series of challenging questions, including:

  • Where do we have broadband where is it missing?;
  • Is it our national policy to make broadband available everywhere?;
  • How would we do that (e.g., by expanding the Universal Service program to encompass broadband)?,
  • What laws/regulations/requirements ought to govern broadband?;
  • What are key national policies to be accomplished with ubiquitous broadband (enhancing national security, public safety, telemedicine, education)?.

One major challenge will be to determine how demands for wireless broadband communications should be accommodated in anticipation of a 30-fold increase in mobile traffic. On June 28, the President issued a Memorandum, "Unleashing the Wireless Broadband Revolution," which directs the heads of all government agencies to cooperate with the FCC in identifying and repurposing for mobile broadband up to 500 megahertz of spectrum now reserved for commercial and governmental uses.

The Plan also recommended construction of a nationwide, 100 percent interoperable, broadband wireless public safety network for first responders, to be built by local agencies pursuant to federal design and performance criteria. Up to $15 billion in federal funding over a decade may be necessary to help build the network.

The FCC is also actively considering how it might assert jurisdiction over the Internet. On June 17, the commission released a Notice of Inquiry seeking comments on its authority to regulate broadband Internet access. In particular, it sought comment on its "Third Way" approach, which would reclassify the transmission aspect of broadband Internet access from its current status as an unregulated information service and transform it into a telecommunications service subject to common-carrier regulation. The Third Way seeks to work around the decision in Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). That decision cast into doubt the statutory authority for the FCC's Net Neutrality initiative, which would impose broad fairness obligations on broadband providers to prevent possible exercise of market power at the expense of consumers.

All Americans have a vital interest in the outcome of the Administration's efforts to shape the future structure of this critical sector of the economy.

John F. Cooney is a partner in the Washington, D.C., office of Venable.

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John Cooney

John F. Cooney is a partner in the Washington, D.C., office of Venable.

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