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Blair Levin, who headed the FCC’s Omnibus Broadband Initiative (OBI) for the past year and who was the principle architect of the National Broadband Plan, announced yesterday that he’s leaving the FCC on May 7 to join the Aspen Institute, a large and prestigious think tank.

Levin created the OBI from scratch. He moved in to the FCC, but he hired many new staff. He adopted new procedures for gathering public input, including blogging, “staff workshops”, and what amounted to frequent cold calls to people in business and academia to solicit views and information. The OBI was not your father’s FCC proceeding!

Levin also drew a dauntingly broad scope for the effort, and the OBI staff continued to expand that scope almost until the last minute. The proceeding, and the Plan, addressed broadband technology, deployment, services, adoption, financing, and usage. It asked how broadband affects other institutions and industries, from broadcasting, cable, wireless, and voice services to education, politics, energy and the environment, to name just a few.

Levin’s efforts drew enthusiastic support from some quarters and criticism from others. Some disliked his unorthodox procedural approach and others welcomed it. Some who agreed with his positions questioned his procedures, and vice versa. Whatever one thinks of the procedure or the recommendations, the National Broadband Plan is a remarkable document – comprehensive, polished and beautifully written and presented.

The most polarizing issue was a proposal to reallocate broadcast spectrum for wireless broadband use. I’ve questioned some aspects of the broadband plan, especially whether proponents of more broadband spectrum have really made their case. But I’ve been awed by Levin’s ability to “shake things up” in a town where the status quo can last for decades.

Reactions to Levin’s announcement have been as mixed as views of the National Broadband Plan. I’m disappointed to see him go. Levin is one of the smartest, hardest working, most effective, and best-intentioned people to work at the FCC (and that’s a big club). I disagree with some of his views, but I’ve never doubted his sincerity or the honesty of his motives.

Levin didn’t start the debate over broadcast spectrum – that began in the 1980s – and it won’t end on May 7. But he focused the issue and gave it legs. The country is now having a debate about the future of broadcasting that would have seemed unthinkable a year ago.

I’m an optimist — perhaps a delusional optimist. But if downsizing the nation’s broadcasting service is suddenly thinkable today, maybe real deregulation of broadcasting, including much-needed ownership reform, is also thinkable. The FCC’s Future of Media proceeding essentially asks that question.

I’ve harbored hope that ongoing engagement on “the spectrum issue” will eventually lead to grounds-up rethinking of the broadcast ownership rules. Broadcast regulation needs some serious shaking up, and the constituencies around many of those regulations are honed in the art of the status quo. Levin demonstrated an uncanny ability to reset people’s conceptions about what is and isn’t achievable. Broadcasters could use some of that energy focused on ownership rules which artificially limit their participation in a digital broadband future. He’s leaving, but perhaps someone will learn from Levin how to pull off something as ambitious as repealing anachronistic broadcast regulations. I hope so. And I hope the Aspen Institute knows what it’s getting into!

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This week saw generally positive news for television broadcasters on the broadband front. First, the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC does not currently have authority to regulate the network management policies of Internet providers. Aside from the fact that the Court’s ruling challenged the FCC’s ability to require Internet providers to treat all network traffic equally, i.e., to apply “net neutrality,” the decision also calls into question key aspects of the FCC’s ambitious National Broadband Plan, many of which assumed the FCC had broad authority to regulate the Internet. Because the Court struck at the very heart of the National Broadband Plan, the Court’s decision may undermine other aspects of the plan, including its controversial proposal to reclaim 120 MHz of spectrum from television broadcasters that we discussed in a previous post.

Another shifting wind came in the form of Verizon CEO Ivan Seidenberg, who publicly stated he does not believe there is going to be as great a spectrum shortage as the FCC predicts, and that “confiscating [TV] spectrum and repurposing it for other things, I’m not sure I buy into the idea that that’s a good thing to do,” and adding “I think the market’s going to settle this. So in the long term, if we can’t show that we have applications and services to utilize that spectrum better than the broadcasters, then the broadcasters will keep the spectrum.”

It is unclear whether the Commission will appeal the Court’s decision, and broadcasters still have a long way to go before they can breathe easier about their spectrum being repurposed for auction to wireless companies. Still, after being forced headfirst into a gale force national debate over the “best use” of their spectrum, any calming of those winds is certainly welcome.

While all this is good news for broadcasters, the FCC certainly isn’t giving up and going home. Just today, the FCC released its “Broadband Action Agenda” setting the timing for more than 60 rulemakings and other notice-and-comment proceedings, including a rulemaking involving broadcast spectrum reclamation scheduled for the Third Quarter of 2010. While the FCC’s authority over the Internet may be up in the air, it continues to exercise vast authority over broadcasters. One dark scenario (for everyone) is that the FCC rushes forward and reclaims broadcast spectrum, only to have its National Broadband Plan collapse before being implemented. In that situation, the damage to the public’s broadcast service would be done, the spectrum would still be auctioned, but likely with reduced demand (and excessive supply) driving down auction revenues for the government, and the public ending up no closer to the broadband nirvana envisioned by the FCC’s proposal.

Stay tuned, as this is a story that will be unfolding for quite a while.

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3/22/2010
Businesses dependent on spectrum should be alert to FCC trend toward greater frequency sharing and incumbent dislocation.

Introduction
The FCC’s staff has released its long-awaited National Broadband Plan (“NBP”). As expected, the NBP includes controversial proposals to reclaim 120 MHz of spectrum from television broadcasters. Another spectrum reallocation, involving microwave spectrum that would impact broadcasters in their use of Broadcast Auxiliary Service spectrum, has received less attention. So too has the NBP’s overall approach to spectrum reallocations, which represents a sea change in the way the FCC manages spectrum. This new approach focuses on unlicensed and flexible uses of spectrum, placing all spectrum allocations on a three-year cycle for scrutiny and possible reallocation to “more valuable” uses.

The NBP, then, serves as a roadmap for future reallocations. Careful review of the mechanics of the specific reallocations the NBP proposes for the immediate future reveal the extent to which its authors seek to change long-established service rules for each spectrum band in order to free spectrum for other uses. This Advisory provides that review so that spectrum users, both those who are immediately affected by the NBP and those whose spectrum has not yet been surveyed by the FCC, can better understand the likely impact of such changes.

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March 17, 2010
Pillsbury invites you to join a conference call on Wednesday, March 24 at 2 p.m. to discuss the broadcast spectrum changes proposed in the National Broadband Plan.

The National Broadband Plan (“NBP”) proposes immediate and sweeping steps that, if adopted, could displace many television broadcasters from their existing spectrum. Specifically, FCC staff proposes a “voluntary” surrender by some television broadcasters of their spectrum as well as repacking of the spectrum to minimize the portion dedicated to television broadcasting. An expected flood of FCC proceedings and possible surprises still to play out are likely to keep television broadcasters playing catch-up. The growth of both broadband and broadcasting are not necessarily incompatible goals if the proper mechanisms are put in place. However, the current version of the NBP places the broadcast industry in a defensive position by assuming that broadband can only grow by displacing television broadcasters.

To register and receive the conference telephone number and password, please contact Liliam Aguila. Capacity is limited. Article continues — the full article can be found at National Broadband Plan Proposes Significant Challenges for Television Broadcasters.

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December 2009
Earlier this week, the FCC released a Public Notice seeking “specific data on the use of spectrum currently licensed to broadcast television stations.” According to the Public Notice, in other proceedings related to the FCC’s development of a National Broadband Plan some commenters “have expressed concern that the United States will not have spectrum sufficient to meet the demand for wireless broadband services in the near future and have urged the Commission to make available more spectrum for commercial uses.” In response, the Public Notice states that “the FCC is reviewing various spectrum bands to understand if all or a portion of the spectrum within these bands could be repurposed for wireless broadband services.”

The Public Notice assumes that existing allocations are insufficient to meet the growing mobile broadband market, and that spectrum must be reallocated to meet this demand. The questions and issues posed in the Public Notice (re-printed below) are probing and complex, questioning whether broadcast television should be “diminished,” whether multiple broadcasters can “share” a 6 MHz channel, whether the FCC can reduce the amount of spectrum assigned to advanced television licensees and what actions, including adoption of receiver standards, the FCC might take to enable broadcasters to make more efficient use of their spectrum.

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June 2008
The FCC has long permitted devices employing relatively low level radio frequency signals (“Part 15 devices”), such as garage door openers, cordless telephones, personal computers, and computer peripherals, to be operated without the need for a spectrum license. While such operations are unlicensed, the devices themselves are not unregulated. The FCC’s rules require that the manufacturer or importer of such devices (the “responsible party”) obtain equipment authorization before marketing any such device in order to minimize the potential for harmful radiofrequency interference. Failure to obtain proper equipment authorization can result in monetary forfeitures and/or other sanctions. The FCC routinely investigates Part 15 rule violations and, as an example, recently issued a notice of apparent liability in the amount of $1,000,000 against one alleged violator.

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