The goal of the FCC’s Notice of Inquiry (NOI) appears straightforward enough: Get inputs on a national broadband plan that will provide “robust” broadband access to everyone in the U.S.

As stipulated in the American Recovery and Reinvestment Act of 2009, the FCC’s broadband plan will describe how best to achieve universal broadband access, ensure affordability, monitor progress of broadband deployments and employ broadband access to meet public interest objectives.

By my rough guesstimate, the FCC requests inputs on well over 500 questions. While all of the FCC’s questions are related in one way or another to the broadband deployment topics, some appear to invite comments that could have broader strategic implications for cable operators.

Operator Structure:
We seek comment on the state of broadband infrastructure and service competition, interconnection, nondiscrimination, and openness, and whether these should factor into development of a national broadband plan…has the private sector sufficiently produced open platforms, and if so, to what extent? (from NOI para 48)

The FCC notes that its Computer Inquiry rules requiring facilities carriers to unbundle their wholesale and retail business activities have been scaled back for wireline broadband Internet access. Nevertheless, the FCC’s question about “sufficiently… open platforms” could introduce a new discussion about the merits of unbundling (wholesale) broadband network facilities from (retail) high-speed Internet services. Along similar lines, the FCC may receive comments to the effect that establishing “open platforms” will require mandated common carrier access to cable networks.

Defining Competition:
….there are numerous proceedings impacting competition among broadband providers of all types in which parties advocate that certain changes will help to expedite the deployment of broadband facilities and services…to what extent do tower siting, pole attachments, backhaul costs, cable franchising and rights of way issues, as well as others, stand as impediments to further broadband deployments…? (from NOI para 50)

Here the FCC opens the door to revisit numerous regulatory and legal matters that have preoccupied cable operators for many years. While this allows MSOs to restate their positions on such topics, it also enables others to push for outcomes that MSOs would find unfavorable in order to achieve the greater good of universal broadband deployment.

Privacy:
We seek comment on how the Commission should treat issues such as deep packet inspection and behavioral advertising in developing a national broadband plan…is [this] something that Congress or government agencies should address, or can privacy protections be achieved through industry self-regulation, such as industry best practices? (from NOI para 59)

MSOs are appropriately sensitive about appearing to infringe on subscribers’ privacy. For example, although deep packet inspection (DPI) could serve as a valuable and legitimate tool for traffic management, cable operators have been wary of using DPI because of privacy concerns. Stakeholder comments on this topic could encourage adoption of policies ostensibly protecting privacy that would limit cable operators’ future traffic management options. Such policies might also set precedents that are extendable to advanced advertising on cable’s linear and on-demand video services.

The FCC’s broadband NOI is likely to produce a mountain of comments. Let’s hope that some of them shed more light on the key issues that are core to achieving optimal availability of broadband in the U.S.:

• How should “broadband” be defined given its mix of attributes and the evolution of online applications?
• How should broadband deployment be tracked and evaluated taking into account the distinctive aspects of the U.S. environment?
• What subsidies are appropriate to encourage broadband deployment where market conditions are unfavorable?
• How may cable (and telco) ISPs optimize broadband access not only for their end-users but also for third parties such as online video publishers and VoIP operators, while sustaining viable ISP business models?

We’ll soon discover what emerges from the NOI. Initial comments are due by June 8, and replies to these comments by July 7. The commission’s deadline to come up with a national broadband plan is Feb. 17, 2010.

1FCC, In the Matter of A National Broadband Plan for Our Future, GN Docket No. 09-51, NOTICE OF INQUIRY, Released: April 8, 2009

Array

Peter D. Shapiro is founder and principal at PDS Consulting (www.pdsconsulting.net), which specializes in cable and telecommunications assignments. His clients include operators, financiers, attorneys, industry associations, and government agencies. He provides opportunity assessments, due diligence analyses, competition monitoring and evaluation, and industry expert litigation support. He can be reached at Peter@PDSConsulting.net.

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