With the announcement by the FCC of its “Broadband Action Agenda,” affected utilities and other enterprises must take advantage of opportunities to comment on proposed recommendations and reforms. 

On April 8, 2010, the Federal Communications Commission (FCC) announced its long-awaited "Broadband Action Agenda" for implementing various recommendations in the National Broadband Plan.  Overall, the FCC is planning over 60 rulemakings, Notices of Inquiry (NOIs) and other proceedings in 2010.  Additional information regarding the FCC's Broadband Action Agenda is available on the FCC's website.

The FCC intends to take action on several items that will directly affect utilities and other enterprises, including pole attachments, spectrum (which may affect utility communications), cyber security and the survivability of communications networks.  The FCC also intends to reform the Universal Service Fund (USF) contribution mechanisms, which could potentially result in significant increases for the USF fees paid by enterprise users such as utilities.

The FCC's ambitious agenda signals that the agency intends to move forward aggressively with implementing many of the recommendations in the National Broadband Plan.  Accordingly, for certain issues where the FCC has stated its intention to seek further comment, it will be especially important for companies to weigh in on these proceedings to discuss how the proposals will affect their operations.   

Key Rulemaking and Other Proceedings Affecting Utilities

Among other things, the FCC's Broadband Action Agenda sets forth the anticipated timetable for action in 2010 on the following rulemakings and notice-and-comment proceedings that will most directly affect electric utilities and utility operations:

Second Quarter 2010 (April through June)

• Pole Attachments Order and FNPRM:  To promote broadband deployment and new broadband entrants, the FCC will adopt an Order and Further Notice of Proposed Rulemaking (FNPRM) to clarify and streamline broadband network operators’ ability to obtain just, reasonable and nondiscriminatory access to utility poles for the build out of their networks.
• Strategic Spectrum Plan and Triennial Assessment:  In coordination with the National Telecommunications and Information Administration (NTIA), the FCC will maintain and continually update a strategic spectrum plan, preparing and publishing assessments of the supply, usage, and demand for spectrum—including potential sources of new spectrum—every three years.
• Survivability NOI:  To ensure the resiliency of broadband networks in times of disaster, the FCC plans to seek comment on the present state of survivability and potential measures to reduce vulnerability to network failures, and issue further requests for comment as required in 2011.
• Cyber Security Certification NOI:  To promote more vigilant network security and provide consumers with more information about their providers’ cyber security practices, the FCC will initiate a proceeding to create a voluntary cyber security certification program that creates market incentives for communications service providers to upgrade their network cyber security.  This proceeding will also examine additional voluntary incentives that could improve cyber security and improve education about cyber security issues, and may be followed by a rulemaking in 2011.
• Service Outage and Homeland Security Workshop:  To help ensure a better response to service outages affecting IP-based networks and prevent future outages, the FCC will hold a staff workshop regarding critical infrastructure and information collection and issue a subsequent public notice.
• Identification of Contiguous Spectrum for Unlicensed Use:  In conjunction with ongoing work on the strategic spectrum plan and triennial assessments, the FCC will begin meetings with stakeholders to collect initial ideas regarding candidate bands to make more spectrum available for unlicensed use, and by the end of 2010 make a recommendation regarding initiating a proceeding to free up a new, contiguous nationwide band for unlicensed use within the next ten years.
• USF Reform NPRM and NOI:  To begin the process of reforming the USF High-Cost Fund, the FCC will propose specific common-sense reforms to the existing high-cost support mechanisms to identify funds that can be refocused toward broadband, and will seek comment on the use of a model to determine efficient and targeted support levels for broadband deployment in high-cost areas.

Third Quarter 2010 (July through September)

• Spectrum Sharing/Wireless Backhaul NPRM/NOI:  To enable more cost-effective use of spectrum and to help increase wireless broadband availability in both rural and urban areas, the FCC will propose rules to allow for increased spectrum sharing among compatible point-to-point microwave services and greater flexibility in deploying wireless backhaul.
• Rights-of-Way Task Force:  In July 2010, the FCC will begin work on a rights-of-way task force with state, tribal and local policymakers to inventory current practices and policies and recommend fair practices and fees for broadband network operators’ access to rights of way.  The FCC will use recommendations from the task force in a subsequent formal proceeding to seek industry-wide comment on collecting and making available more information about rights of way and setting guidelines for rights-of-way access.
• Opportunistic Use of Spectrum NPRM:  To enable more efficient use of spectrum by increasing opportunities for dynamic spectrum access technologies in different bands, the FCC will propose rules to facilitate the use of smart radios in spectrum held by the FCC (such as in certain license areas where spectrum was not successfully auctioned) that would otherwise be unused.

Fourth Quarter 2010 (October through December)

• USF Contributions NPRM:  To stabilize support mechanisms for universal service programs, the FCC will propose rules to reform the process for collecting contributions to the USF.
• Secondary Markets Internal Review:  To identify ways to increase incentives and mechanisms to reallocate or repurpose unused and underutilized spectrum, the FCC will complete an internal assessment of barriers to using secondary markets, including transferring, licensing and leasing spectrum by existing licensees to third parties.  The outcome of the review will determine whether further action is required in 2011.
• Experimental Licensing NPRM:  To establish more flexible experimental licensing rules for spectrum, the FCC will propose rules to facilitate research and development and help accelerate spectrum innovation.
• Service Outage and Homeland Security NPRM:  The FCC will propose rules to extend the FCC’s Part 4 outage reporting rules (currently applicable to communications service providers) to broadband internet service providers and interconnected VoIP providers. 

The FCC has announced that it will consider several of these items at its open meeting on April 21, 2010, including USF reform, cyber security and the survivability of broadband networks.