As called for in last year's The American Recovery and Reinvestment Act of 2009 (ARRA), the FCC has reported its long-awaited National Broadband Plan to Congress. The 360 page Plan seeks to guide policymakers, the communications industry and the public in order to increase the availability of broadband capability across America.
The Plan includes some 200 recommendations for further action, over half of which are directed at the FCC itself. The agency plans to release an implementation schedule soon of over 40 rulemaking proceedings necessary to implement the Plan's recommendations.
What was released on March 16th is therefore nothing more than a plan for a plan — or, more to the point, a jigsaw of plans that will be implemented piecemeal by the FCC and other government offices. The danger is that the resultant pieces may not fit together, and no clear picture of gains in broadband availability or adoption will materialize.
Moreover, the lack of official consensus on the recommendations contained in the Plan may hamper its usefulness in achieving ARRA's goals of stimulating our economy through timely and targeted measures.
The Plan was the product of a thirteen-month effort by the FCC and its staff to amass the data necessary to identify gaps in broadband availability and adoption, and examine how broadband could power our nation's economic recovery. Workshops were held nationwide; nearly forty requests for information were issued; and tens-of-thousands of pages of documents, as well as on-line commentary, were submitted for the record.
The framework was promising: an open, transparent and participatory process to develop a consensus plan, fostered by the FCC to help make broadband Internet service as affordable and ubiquitous as voice telephone service. But what was sent to Congress was a Plan developed and written by the FCC staff, and not voted on by the FCC Commissioners themselves.
The Plan was fundamentally framed, developed and written by a group called the "Omnibus Broadband Initiative," an "all star" team assembled by the FCC's Chairman to work in conjunction with FCC career staff. To be sure, the vast majority of the 410 staffers listed as contributors to the Plan were drawn from 13 different Bureaus and Offices of the FCC. But the fact of the matter is that this is no more than a staff-driven piece of work.
This is not to belittle the significant and impressive effort of the FCC's dedicated staff (of which I was once one). But critically missing are the votes of the FCC's five Commissioners. They were not given the opportunity to vote on the Plan and as a consequence, did not officially adopt it. Instead, they voted solely to adopt a brief "Joint Statement on Broadband" — reflecting only their "common beliefs" — that identifies six broadly-worded goals for developing U.S. broadband policy.
Tellingly, the Joint Statement reveals that each of the Commissioners "may have differing opinions on some of the specific recommendations set forth in the Plan." FCC Commissioner Robert McDowell separately stated that while the Plan "represents a tremendous amount of hard work and thoughtfulness
[I]t does not carry with it the force of law."
This is not insignificant. Most questions concerning government actions are "means and ends" questions. There can be a great deal of agreement on the ultimate ends — such as providing every American with a "meaningful opportunity to benefit from broadband" — but tremendous disagreement on how to get there.
Only broad goals saw agreement for this Plan — not the means to get there. The FCC's Commissioners — on the very details of the Plan — showed no official endorsement. The effects of the diversity of opinion on the Commission itself may portend far-reaching, practical consequences. That is, the procedural choice not to put the full Plan to a vote by the five Commissioners could impeded, perhaps greatly, the ultimate efficacy and results of the Plan. As Commissioner McDowell suggested, the staff's freedom to make recommendations without the need to gather votes means that the heavy lifting necessary to adopt consensus rules with the force of law must await another day. In the Commissioner's words, "today marks the beginning of a long process, not the end of one."
The lengthy Plan itself recommends a host of further actions to be taken by the FCC, the Congress, other departments of the federal government, as well as state and local governments. For the FCC to put the framework into action, it will have to proceed step-by-step, via a formal rule-making process. At the end of the formal rule-making process, each separate proposal must be adopted by a majority vote of the Commission.
Though necessary to promote more balanced, sustainable outcomes, rule-makings can be a time consuming and contentious process. Hopefully, the enormous record already amassed to produce the staff's Plan will permit that effort to proceed expeditiously and fairly. Doubtless, many of the staff's recommendations will be very useful in bringing this nation closer to the consensus goal of universal, affordable broadband Internet services for all, including directed subsidies, adoption programs, rationalization of utility pole rates, and endeavoring to make 500 MHz of spectrum newly available for wireless and mobile broadband uses.
But a huge question mark looms over the Plan. Will the other governmental entities whose actions are required to implement over half the recommendations, including state and local governments, feel as compelled to follow the recommendations of the Plan when it does not even bear the imprimatur of an affirmative vote of a majority of the sitting Commissioners?
Even the best-laid plans can go awry. It would be a shame if all the time and money spent developing this very important Plan were put at risk by the decision to have the FCC vote on only a joint statement setting the broadest of policy goals, when it is the detailed manner of implementation of broadly-worded policy goals that really matters.
Image copyright Horia Varlan.