OFFICE OF
THE CHAIRM";\/
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON
July 1,2010
The Honorable of Ilenry A. Waxman
Chairman
Commillee on Energy and Commerce
U.S. 1louse of Representatives
2125 Rayburn House Office Building
Washington, D.C. 20515
Dear Chairman Waxman:
Attached please find my responses to the additional post-hearing questions from my
appearance before the Commillee on March 25. 2010. Please let me know if I can be of further
assistance.
Sincerely.
Julius Genaehowski
•
Responses of Chairman Julius Genachowski to Questions for the Record
Oversight Hearing of the Federal Communications Commission:
The National Broadband Plan (March 25, 2010)
QUESTIONS FOR THE RECORD
THE HONORABLE A A G. ESHOO
I. AWS-3 Spectrum Deployment
The Commission and its staff have demonstratcd a sense ofurgency in drafting this Report.
I'm convinced, based on the testimony presented here, that the Commission recognizes the
need for speed. But I continue to have some concerns, especially when it comes to spurring
competition with new and innovative uses of the spectrum. Too many entrenched intcrests
seem to be able to stop new ideas from taking root through delaying tactics that keep
spectrum concentrated in the hands of larger carriers.
The Commission has to work together in an expeditious fashion to deploy already available
spectrum. Ifwe're going to see that 100 megabits reach 100 million homes the FCC has to
bcgin to complete rulemakings faster so that we see immediate action. I am disappointcd that
the Advanced Wireless Spectrum (3) was not recommended for immediate deployment 
that's a proceeding that was tced up ycars ago. Busincsses can't be cxpcctcd to participatc in
a hackneyed process that leavcs thcm wondering and losing money for ycars.
Also, I have heard that the Department of Defcnse's (DOD) 1755-1780 MHz spectrum band
that the National Broadband Plan is considering pairing with AWS-3 is currently jam packed
with vital systems including drones for air strikes in Afghanistan and Pakistan and border
security here at home, and that the systems in that band cost over $100 billion and cannot be
relocated until 2030. Could you comment on this matter?
RESPONSE: The National Broadband Plan ("Plan") recommends that NTIA, in
consultation with the FCC, conduct an analysis, to be completed by October 1,2010, ofthe
possibility ofreallocating a portion of the 1755-1850 MHz band to pair with the AWS-3
band. This effort is already under way with our colleagues at NTIA. As suggested by the
plan, NTIA and FCC staff involved in these consultations are considering various
possibilities for reallocating spectrum to meet the needs of the wireless markel's explosive
growth. This includes, but is not limitcd to, the 1755-1780 MHz band.
Almost ten years have passed since spectrum managers last examined the possibility of
reallocating additional spectrum from the 1.7 OHz band, so a fresh look is appropriate.
Obviously the wireless marketplace and mobile teclmologies have undergone significant
changes in the last decade. For example, in 2000-2001,000 assumed that all non-Federal
operations would involve IMT-2000 or 30 technology, which may no longer be the case.
Carriers are now contemplating deployment of40 technologies, including LTE and
WiMAX. Also, during the last review, the process for reimbursing Federal users was
unclear. Now, the Commercial Spectrum Enhancement Act passed in 2004 provides
certainty to Federal users--and I understand that Congress may also consider additional
improvements to that process.
In summary, the Plan recommends that over the next months we analyze the possibility of
obtaining additional spectrum to pair with A WS-3. I completely agree with you that it is
important for the Commission to resolve proceedings as expeditiously as possible, and I notc
that the Plan sets a deadline of October 1,2010 to complete the analysis ofthis pairing
alternative. The Plan recommends that ifthere is a strong possibility ofreallocating federal
spectrum to pair with the A WS-3 band, the FCC, in consultation with NTIA, should
immediately commence reallocation proceedings for the combined band. The Plan goes on
to recommend that if pairing is not a strong possibility, the Commission should proceed
promptly to adopt rules in 2010 and auction the AWS-3 spectrum on a stand-alone basis in
2011.
2. Since there is no evidence or data in the National Broadband Plan supporting this possible
pairing, did anyone at the Commission contact DOD officials to get the real picture on
reallocating DOD's spectrum during the preparation ofthe National Broadband Plan?
Ifso, please make available to me and my colleagues the data from the DoD or the
Administration suggesting the possibility of reallocating federal spectrum to pair with the
AWS-3 band.
RESPONSE: It has been almost 10 years since NTIA and the FCC have formally evaluated
the possibility of non-Federal use of spectrum within the 1755-1850 MHz frequency band.
NTIA has agreed to take a fresh look at this possibility, commenting that "the Administration
supports exploring both conilllercial and government spectrum available for reallocation."
FCC staff members have been pal1icipating in all interagency process with NTIA and other
Federal agencies regarding potential non-Federal use of spectrum in a number of bands,
including the 1755-1850 MHz frequency range.
3. I want to know what you will do individually to move us forward. If you don't find paired
spectrum by the October deadline outlined in the report, will you actually auction the
spectrum and put it in use as soon as possible?
RESPONSE: Yes. One of the things that the Plan did was set a deadline for analysis ofthis
pairing alternative. The Plan also recommends that if the pairing is not possible, the
Commission should immediately proceed to adopt rules, and auction the AWS-3 spectrum.
Recently, the FCC released an Action Agenda that indicates that the Commission will, by
October I, 20 I0, conclude a process with NTIA to determine whether a portion ofthe 1.7
GHz band currently used for federal government purposes can be paired with 20 MHz of
spectrum in the AWS-3 band. The Plan Action Agenda also indicates that if, at the end of
the inquiry, there is not a strong possibility ofreallocating federal spectrum, the Commission
plans to adopt final rules in the fourth quarter ofcalendar year 20 I0 to auction the AWS-3
spectrum on a stand-alone basis in the second quarter ofcalendar year 20 I I.
4. With this in mind, I did not see any immediate, specific recommended actions in the Plan that
would have the FCC create new broadband competition through the use of spectrum. What
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specific actions will you be taking in the short term, say in the next 3 months, that will
provide spectrum so we can help creatc ncw entrants to the broadband market?
RESPONSE: The Plan laid out several recommended actions to create broadband
competition through the use of spectrum. Specifically, the Plan recommends that the FCC
make 500 megahertz newly available for broadband use within the next 10 years, of which
300 megahertz between 225 MHz and 3.7 GHz should be made newly available for mobile
use within five years. In addition, the Plan suggests that the Commission should free up new,
contiguous spectrum for unlicensed use, which could provide additional opportunities for
competitive entry and ongoing innovation in mobile services and technologies. The
Commission's Bureaus and Offices have already begun executing the strategy laid out in the
Plan. The Broadband Action Agenda, announced on April 8,20 I0, explains the purpose and
timing of more than 60 rulemakings and other notice-and-comment proceedings the Plan
recommends for FCC action. See http://www.broadband.gov/plan/broadband-action 
agenda.html. For example, by the end ofthis quarter, the Commission plans to address an
Order to enable robust mobile broadband use of 20 MHz of spectrum in the 2.3 GHz
Wireless Communications Service (WCS) band.
5. Next Generation 911
I was pleased to see a specific rcfcrencc to funding for Next Generation 911. As you know, T
joined with my colleague, John Shimkus, the Co-Chair of the E911 Caucus, to offer
bipartisan, bicameral legislation to renew grants for 9-1-1 call center technology, and to
move that technology into the next developmental phase. Have you had the opportunity to
review the legislation and could you give me your opinion about the need [or H.R. 4829?
RESPONSE: I have reviewed I-T.R. 4829, as well as the companion Senate bill, S. 31 15.
The legislation is consistent with our recommendations in the National Broadband Plan
(NBP) and would advance the vision for the rapid and efficient deployment ofand migration
to Next Generation 91 I. Consistent with our recommendations in the NBP, the legislation
reauthorizes the 911 grant program that was created in 2004 by the ENHANCE 911 Act, and
reauthorizes the 911 Implementation Coordination Office (ICO) as well. In particular, there
is a significant need for those provisions that would authorize grants for Enhanced 911 and
Next Generation 911 implementation, condition receipt ofgrants on use of911 funds only
for their intended purposes, and address 911 caller location issues with respect to operators of
multi-line telephone systems (MLTS). 1 also appreciate that the legislation includes training
in 911 services, because 1 recognize that training is of national importance. The need for
these provisions can be measured in the lives that Enhanced 911 and Next Generation 911
services will save, the injuries they will prevent, and the property they will protect. I look
forward to working with you and your colleagues in implementing all ofthe NG 91 I-related
recommendations contained in the NBP and ensuring that NG 911 is available throughout the
nation.
6. Special Access
I was glad to see that the Plan includes scveral references to making sure that special access
rates are just and reasonable. As we all know, these circuits provide critical connections for
wireless services - including backhaul for wireless providers to small businesses using
3
ATM's, to the largest retail chains placing orders with their vendors. I have LONG
advocated that the Commission look into the pricing and competition ofspecial access
services and I'm glad to see that it is a priority. Are you confident that you have the legal
authority to move ahead?
RESPONSE: Yes. Special access service is a common carrier telecommunications service
subject to statutory requirements under Title II of the Communications Act. See Special
Access Ratesfor Price Cap Carriers NPRM, 20 FCC Rcd 1994 (2005) (describing the
history of the Commission's rate regulation of interstate access services, including special
access service). For example, section 20 I of the Act requires common carriers to provide
their services at just and reasonable rates. See 47 U.S.C. § 201(b). Second 202(b) prohibits
carriers from engaging in unjust or unreasonable discrimination in their charges or practices.
See 47 U.S.c. § 202(a). Moreover, the Commission has the authority to prescribe just and
reasonable special access rates. See 47 U.S.C. § 205. These provisions provide the
Commission with ample legal authority to ensure just and reasonable rates in the provision of
special access services.
On November 5, 2009, the Commission issued a public notice seeking comment on an
appropriate analytical framework to resolve issues raised in the pending Special Access
Notice ofProposed Rulemaking. This proceeding seeks to determine whether the
Commission's rules are working to ensure that rates, terms, and conditions for special access
services, which serve business locations and ccll towers, are just and rcasonable, as required
by law. The Commission's staff is presently analyzing the extensive comments it has
received in response to that public notice. Further, the National Broadband Plan makes
certain recommendations regarding special access services to promote broadband
deployment, competition, and investment. In this regard, the Plan recommends that the
Commission comprehensively review its regulations and develop an effective policy
framework for taking expedited action to ensure the widespread availability of inputs for
broadband services, including the inputs provided by special access services.
As part of its recently announced broadband action agenda for implementing the National
Broadband Plan's recommendations, the Commission will hold a staff workshop late in the
second quarter or early third quarter to discuss the analytical framework it should use to
assess the effectiveness ofthe existing special access rules. In late third quarter or early
fourth quarter, the Commission plans to propose such a framework and identify associated
data collection requirements, ifnecessary - critical steps toward ensuring that rates, terms,
and conditions for special access services are just and reasonable, as required by law.
7. Affordability
The National Broadband Plan doesn't provide specifics on how to achieve bringing more
broadband connectivity to low income and rural homes in this country, other than through
use ofthe Universal Service Fund. Will the FCC work more closely with HUD to expand
this needed technology?
RESPONSE: The plan includes a number of recommendations aimed at increasing
connectivity to low income and rural homes. Some, such as expanding low income
4
Universal Service support to broadband, will be lead by the FCC. When implementing
recommendations within its jurisdiction, the FCC, where appropriate, will seek input from
HUD and other federal agencies who serve large groups of non-adopters such as the
Department of Agriculture or the Department ofEducation.
The plan also addresses affordability as part ofother, broader recommendations to increase
adoption and the FCC may not have a role in implementing some ofthose recommendations.
For example, the National Broadband Plan recommended that NTIA explore public-private
partnerships (PPPs) to stimulate broadband adoption in non-adopting communities, and noted
that HUD residents are an especially vulnerable group. NTIA recently awarded a $28.5
million sustainable adoption grant, which will be supplemented by $23 million matching
funds by a consortium of private companies, to collaborate with 159 affordable housing units
across the country, subsidize connections for 27,000 housing units. The fCC is also aware of
a round two BTOP application that proposes to work more closely with HUD to institute
similar, multi-pronged adoption programs targeting as many as 250,000 low income
households. The FCC will not have a formal operational role in any particular PPPs that may
develop as part of BTOP, but the FCC will continue to explore innovative approachcs to
coordinate with other government actors like HUD, NTiA and the Depm1ment ofAgriculture
while also leveraging efforts by other stakeholders from the private and non-profit sectors.
8. I'm concerned that low income homes will get hooked up, but the residents will be unable to
maintain monthly payments. Once low income and rural households do acquire broadband
technology, what can be done to assure that the monthly service charge is kept to a minimum
so that the service may be maintained?
RESPONSE: The National Broadband Plan recommends that universal service low-income
programs (Lifeline and Link Up) be expanded to include broadband service. Currently,
Lifeline discounts offset eligible low-income consumers' recurring, monthly telephone
charges, while Link Up discounts reduce eligible low-income consumers' one-time telephone
connection/installation charges. Ifboth Lifeline and Link Up discounts are expanded to
apply to service packages that include broadband, as the Plan recommends, eligible low 
income consumers would be eligible for discounts on both recurring monthly charges and
installation charges for broadband service. Specifically, the Plan recommends that: (1) the
FCC and states should require eligible telecommunications carriers (ETCs) to permit Lifeline
customers to apply Lifeline discounts to any service or package that includes basic voice
telephone service; (2) the FCC should integrate the expanded Lifeline and Link Up progrmns
with other state and local e-goverrullent efforts; and (3) the FCC should facilitate pilot
programs that will produce actionable information to implement the most efficient and
effective long-term broadband support mechanism.
9. Competition Questions
The National Broadband Plan observes that there is not a coherent and effective framework
governing the Commission's wholesale competition regulations, including wireless roaming
policies. Indeed, the FCC's current wireless roaming rule expressly permits the nation's
largest wireless carriers to discriminate or exclude large gcographic areas altogether in
providing wholesale roaming services to their competitors. As the Plan notes, such conduct
5
undermines longstanding competition policy objectives by limiting the ability of smaller
carriers to gain access to the necessary inputs to compete. How do you intend to address this
important wholesale competition issue in the context ofwireless roaming services?
RESPONSE: In April, the Commission modified the 2007 roaming rule and eliminated the
home roaming exclusion.! Under the revised roaming rule, upon a reasonable request,
CMRS carriers are obligated to provide voice, text messaging, and push-to-talk roaming to
any technologically compatible, facilities-based CMRS carrier on reasonable and not
unreasonably discriminatory terms and conditions. This new framework for roaming will
encourage carriers of all sizes to reach reasonable roaming agreements for any area, while
also encouraging these carriers to continue investing in the coverage and capacity oftheir
networks. Elimination ofthe home market roaming exclusion will increase consumers'
access to seamless nationwide mobile services, wherever and whenever they choose, and will
promote investment, innovation, and competition in mobile wireless services.
10. The National Broadband Plan acknowledges the importance of data roaming to entry and
competition for mobile broadband services. But the FCC's present voice roaming rule
contains an "in-market" exclusion that expressly permits carriers to deny roaming service to
their competitors' customers in large portions of their licensed territories. This exclusion, if
replicated in the data roaming context, would appear to severely undercut the Commission's
stated goal in the Plan of achieving "wide, seamless and competitive coverage." How does
the Commission intend to address this problem?
RESPONSE: As discussed above in response to question #9, with respect to voice and
related services, the Commission eliminated the home roaming exclusion. With respect to
data roan1ing and consistent with the National Broadband Plan, the FCC sought additional
comment on whether to extend automatic roaming obligations to mobile data services. The
Commission committed to resolve the data roaming issue in an expedited manner. As Thave
said before, there are few areas in communications that present greater promise for our
country than mobile - in terms ofdriving our economy and delivering broad opportunity for
all Americans - and our goal must be for America to lead the world in mobile. To promote
this goal, we must ensure that American consumers have access to competitive broadband
data communications services whenever they want and wherever they arc, whilc also
ensuring that the United States has the fastest and most cxtensive mobile networks in the
world.
11. Public Television - Broadcast Spectrum Issue
As you know, public television stations are very different from commercial television
stations with respect to their funding, their programming, their mission and the efficient
manner in which they use spectrum to serve the public interest. Public television stations
also have been confronting extraordinary fiscal challenges during the past 18 months. As the
Commission looks ahead to rulemakings announced in the National Broadband Plan to
I See Order on Reconsideration and Second Further Nolice ofProposed Rulemaking. WT Docke! No. 05-265, FCC
10-59 (reI. Apr. 21,20 I0).
6
reclaim 120 MHz ofspectrum from broadcasters, can you give us assurances that public
television stations will be protected from involuntary reallocations ofspectrum?
RESPONSE: Yes, the rules for broadcast spectrum reallocation that I will support will
provide for a voluntary program for public television stations, as well as commercial stations.
Our initial estimates of how much spectrum per market we'll need to repurpose do not
distinguish between commercial and non-commercial television spectrum.
We do distinguish, however, between how to allocate the proceeds resulting from any
contributions ofcommercial and non-commercial station spectrum. In Recommendation
15.6 ofthe National Broadband Plan, wc suggest that Congress considcr allowing 100% of
the proceeds from the sale ofspectrum contributed by non-commercial television stations to
endow a trust fund for the production, distribution and archiving ofdigital public media. We
also recommended that these proceeds should be distributed so that a significant portion goes
to public media in the communities from which the spectrum was contributed.
Our expectation is that this voluntary program will achieve all our goals.
12. Would you elaborate on the sequencing ofthe rulemakings for reclaiming the broadcast
spectrum and the creation of incentive auctions in the National Broadband Plan? As you
know, only the Congress can authorize the creation of incentive spectrum auctions in which
the contributors of spectrum could receive some of the proceeds. I am particularly interested
in the proposal for the creation ofa digital media trust fund to be created from the proceeds
of incentive auctions of spectrum contributed by public television stations. If Congress docs
not authorize such incentive auctions, will these other rulemakings go forward in any event?
RESPONSE: In Recommendation 15.6 of the National Broadband Plan, we suggest that
Congress consider allowing 100% of the proceeds from the sale of spectrum contributed by
non-commercial television stations to endow a trust fund for the production, distribution and
archiving ofdigital public media. We would look to Congress to determine an appropriate
trustee and uses oftrust income and disbursements, but envision that trust fund proceeds
would be supplemental to current Congressional appropriations for public broadcasting.
I have asked my staff to [oeus our next television spectrum rulemaking on rule changes
necessary to allow stations to share a 6-megahertz channel. We believe channel-sharing
introduces a new and meaningful option ofwhich broadcasters could avail themselves
independent of Congress granting us incentive auction authority.
7
QUESTIONS FOR THE RECORD
THE HONORABLE CLIFF STEARNS
I. Does the broadband plan layout any cost-benefit analyses? How many dollars should we
spcnd for each additional broadband subscriber we create and each additional megabit-pcr 
second we provide? $1 ,OOO? $1 O,OOO? $1 OO,OOO? Will you commit to providing these sort of
cost-benefit analysis before adopting any item in the plan?
RESPONSE: The Commission created the ational Broadband Plan in response to direction
from Congress, in the ARRA, to "seck to ensure that all people of the United States have
access to broadband capability...." The Plan presents analyses ofwhere broadband
infrastructure is available, where there are availability gaps, and the cost to fill those gaps.
The methodology and model underlying these analyses are explained in detail in a staff
technical paper titled "The Broadband Availability Gap" released by the FCC's broadband
team on April 21,20 IO. This paper describes in detail the methodology and model
employed to estimate areas of the U.S where broadband service is not likely to be available
in the next several years, and estimates the cost of bringing broadband to these unserved
areas.
Costs of bringing broadband to a particular unserved home will vary greatly depending on
geography and technology, making it difficult to provide a single figure per home or Mbps.
We recognize that the solution to filling broadband availability gaps will not be the same for
all homes and that part of that solution involves finding the most cost-effective means to
make broadband available. The Commission is committed to continuing with its open,
transparent, data driven processes as it works to implement recommendations contained in
the National Broadband Plan. This process will include rigorous analysis ofdata in the
records developed to consider Plan recommendations, prior to adoption ofany
recommendations.
2. The broadband plan proposes expanding the E-rate program, but the GAO found in 1998,
1999,2005, and 2009 that the FCC has not developed adequate performance goals and
measures for the E-rate program, despite GAO's repeated requests. If we cannot tell how
effective and efficient past E-rate spending has been, how can we be assured expansion will
be done properly or is even a good idea in the first place? Will you commit to submitting E 
rate performance measures and goals to GAO and to us for approval before anyone considers
expanding the program?
RESPONSE: During its II-year existence, the E-rate program has helped thousands of
schools and libraries improve their technological capabilities. When the Commission first
adopted a structure for the E-rate program, the Commission identified goals for the program
and established priorities accordingly. As the Commission noted in its Universal Service
Firs/ Repor/ and Order, the E-rate program was intended to ensure that eligible schools and
libraries have affordable access to modern telecommunications and information services that
would enable them to provide educational services to all parts of the nation. While the
Commission did not set a target for achievement at that time, the program has been
8
successful in getting schools and libraries connected to the Internet. The National Center for
Education Statistics found nearly 100 percent ofpublic schools in the United States had
Internet access, and 97 percent ofthese schools used broadband connections to access the
Internet. The National Broadband Plan seeks to further ensure that the E-rate program helps
studcnts and communities across thc nation continue to have access to essential broadband
connections.
Given the pace at which society and technology move today, it is important to conduct
periodic reviews ofthe Commission's goals to examine whether those goals remain valid or
if adjustments are necessary. The Commission has taken the initial actions necessary to
conduct this evaluation as part of its ongoing comprehensive review proceeding.
Additionally, the Commission recently requested comment on establishing new goals, both
short-term and long-term, for the E-rate program. This proceeding is still pending. Once the
Commission has considered the comments and developed new goals, it will revise its policies
as necessary to achieve them.
3. The broadband plan recommends providing more spectrum for unlicensed use. A 2008 paper
by the FCC's Office of Strategic Planning and Policy Analysis indicates that the most
efficient way to allocate spectrum for unlicensed use would be to do so by auction. If the
sum of the bids of those seeking unlicensed use exceeds the bid of thc highcst biddcr seeking
licensed use, the spectrum would go to the unlicensed use. This would not only cnsure the
spectrum is allocated efficiently, it could raise substantial revenue. Will you commit to
secking comment on the use of auctions in any proceeding regarding potential distribution of
additional unlicensed spectrum?
RESPONSE: The use of markct-bascd techniques in the context of unlicensed spcctrum is
certainly an idea I would support exploring.
4. Some questions were raised at the hearing that spectrum that might otherwise be paired with
the AWS-III spectrum for commercial mobile broadband use may be needed for use with
military drones. But didn't a Department of Defense report released to thc public in 2009
indicate that most current and future high-capacity spectrum used domestically and abroad
for drone flights over about 150 km is on frcquencies far from the spectrum that could be
paired with the AWS-lll spectrum? Won't they mainly use the X-Band from 8 to 12 MHz,
the Ku-Band from 11.5 to 14.5 GI-lz, and the Ka Band from 26.5 to 40 GHz for mission
critical operations? Aren't there also line-of-sight and other issues for most non-satellite
spectrum under 3 GI-lz that limits its use for most drone missions? And if, other than for
testing, the drones are mainly used overseas, will there really be much ofan interference
issue with commercial use here?
RESPONSE: The 2009 report you reference, which I belicvc is titled, "United Statcs Air
Force Unmanned Aircraft Systems Flight Plan 2009-2047," appears to support your
suggestion that certain Department of Dcfense drone systems currently usc, or will likely use
in the futurc, X Band and Ka Band frequencies. These frequencies are far removed from
spectrum currently being considered in the interagency process for pairing with thc AWS-3
spectrum, minimizing any interference concerns.
9
The 2009 report may not address all relevant Department of Defense systems
comprehensively; our colleagues at NTIA would be in a better position to do so. It is
possible, however, that even if spectrum identified through the interagency process for
potential pairing with AWS-3 spectrum were used for data links from drones to a satellite
system, or for similarly sensitive DoD operations, there may be mitigation techniques that
can be employed to reduce the potential for interference between the systems.
10
QUESTIONS FOR THE RECORD
THE HONORABLE FRED UPTON
I. I appreciated your comment at the hearing that the FCC would make sure that any changes in
the Wireless Communications System rules do not result in interference to satellite radio
consumers. My understanding, however, is that the FCC engineering staff is proposing rules
that will allow for at least some interference with satellite radio. What specific actions will
the Commission take to ensure that level of interference is not unacceptable to consumers?
RESPONSE: The rules the FCC engineering staff is recommending are designed to prevent
harmful interference to the satellite radio service and quickly remedy interference ifit should
occur. The proposed rules would permit the wireless communications service (WCS) to offer
mobile voice, vidco and data services. Sirius-XM believes that WCS mobile devices
transmitting continuous video from a vehicle will cause harmful interference to satellite radio
reception in nearby vehicles. While much ofthe debate has focused on whether usage cases
such as video conferencing from vehicles or video uploads of movies are likely, lost in this
discussion is the fact that the engineering staffdoes not believe harmful interference will occur
for these cases, however frequent or infrequent they may be.
The WCS Coalition conducted a demonstration in Ashton, Virginia last summer using an actual
device transmitting multiple types of signals from inside a vehicle, including video, while other
vehicles equipped with Sirius-XM radios drove or parked next to one another. The
demonstration was open to the public and was also witnessed by about a dozen FCC engineering
staff. No harmful interference occurred. The technical parameters in use at that demonstration
and the results ofthat demonstration, along with all of the other information submitted by
parties, informed the proposed rules publicized by the FCC's engineering staff in a recent Public
Notice. Our decision on this mattcr will be furthcr guided by the information and arguments
submitted in response to those very specific proposed rules.
II
QUESTIONS FOR THE RECORD
THE HONORABLE JON SHADEGG
1. The National Broadband plan mentions special access circuits and analyzing competition in
the middle mile - do you anticipate going forward with a request for data soon so we can
address this issue?
RESPONSE: On November 5, 2009, the Commission issued a public notice seeking
comment on an appropriate analytical framework to resolve is ues raised in the pending
Special Access No/ice ofProposed Rulemaking. This proceeding seeks to determine whether
the Commission's rules are working to ensure that rates, terms, and conditions for special
access services, which serve business locations and cell towers, are ju t and reasonable, as
required by law. The Commission's staff is presently analyzing the extensive comments it
has received in response to that public notice. Further, the ational Broadband Plan makes
certain recommendations regarding special access services to promote broadband
deployment, competition, and invcstment. In this regard, the Plan recommends that the
Commission comprehensivcly review its regulations and develop an effective policy
framework for taking expedited action to ensure the widespread availability of inputs for
broadband services, including the inputs provided by special access services. As part of its
recently announced broadband action agenda for implementing the National Broadband
Plan's recommendations, the Commission will hold a staff workshop late in the second
quarter or early third quarter to discuss the analytical framework it should use to assess the
effectiveness of the existing special access rules. In late third quarter or early fourth quarter,
the Commission plans to propose such a framework and identify associated data collection
requirements, if necessary - critical steps toward ensuring that rates, terms, and conditions
for special access services are just and reasonable, as required by law.
12
QUESTIONS FOR THE RECORD
THE HO ORABLE STEVE BUYER
1. Broadband providers have invested hundreds ofbillions ofdollars in recent years to build
and improve their infrastructure and creating jobs at a time when the job market has bcen in
trouble. The broadband industry is projecting to invest additional billion ofdollars in the
coming year - again providing an engine ofeconomic growth. As one of the few industries
ofstrength and investment, past decisions at the FCC to not saddle the Intcrnct with heavy
regulation clearly demonstrate that a less regulatory environment is working. Why are you
proposing that the FCC now pivot away from these policies and impose 19th-century
common carrier monopoly regulation on a 21st ccntury competitive industry, disrupting the
virtuous cycle that currently cxists? If it's not broken, why fix it?
RESPONSE: Promoting continued investment and job creation, both in the core broadband
networks and through Internet-based services and applications that ride on such networks, is
a key priority for the FCC and a key focus of the National Broadband Plan. The private
sector is the key to invcstmcnt and job creation, but government policy can hclp facilitate
thosc outcomes, including through recommendations of the National Broadband Plan to spur
broadband deployment and adoption, such as USF reform. Telecommunications policy must
take account ofcurrent markct and technological realities.
After the National Broadband Plan was released, the United States Court of Appcals for the
District of Columbia Circuit rcleased its decision in Corneas! Corp. v. FCC, 600 F.3d 642
(D.C. Cir. 2010). The Corneas! decision casts serious doubt on whether the legal framework
the Commission chose for broadband Internct services nearly a decade ago is adequatc to
achieve these core broadband policies, which prior Commissions thought they had legal
authority to implement. To address this challenge, the Commission adopted a Notice of
Inquiry at its June 17 Open Meeting to initiate a public discussion on how the Commission
should proceed in light of Corneas!. The Notice seeks comment on all options, and invites
any ideas for how the Commis ion should proceed, including: maintaining the current
"information service" classification of services such as cable modem and DSL Internet
access; classifying broadband Internet connectivity service as a "telecommunications
service" to which all the requiremcnts ofTitle II of the Communications Act would apply;
and thc "third way" - similar to the highly successful approach that has been used for cell
phone services since 1993 - undcr which the Commission would identify the Internet
connectivity service that is offered as part ofwired broadband Internet service as a
telecommunications service and forbear from applying all provisions ofTitle II other than the
small number that are needed to implement fundamental universal service, competition and
market entry, and consumer protection policies. I am enclosing a copy of the otice for your
information. I look forward to working with Commission staff to review the comments the
Notice will generate.
I welcome the process that Chairmen Rockefeller, Waxman, Kerry, and Boucher have
announced to develop proposals updating the Communications Act. A limited update of the
Communications Act could lock in an effective broadband framework to promote investment
and innovation, foster competition, and cmpower consumers. I havc committed all available
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Commission resources to assisting Congress in its consideration ofhow to improve and
clari fy our communications laws. Meanwhile, in view ofthe court decision, and as the
Congressional Chairs have requested, the Commission has an obligation to move forward
with the public proceeding initiated by our Notice, which is complementary to Congress's
own efforts.
2. Recommendation 4.7 implies that the FCC should mandate the unbundling of fiber. Why?
It is my understanding from previous testimony by the FCC that this issue was settled. Such
a recommendation makes no sense because fiber deployment has gone up dramatically in
recent years since the FCC confirmed that it was not subject to unbundling in the Trielmial
Review Order of2003, which deregulated some of those components. Can you explain the
legal basis on which the FCC could undertake to reverse itsel f on this matter? What
findings/analysis would be required? What decisions would need to be reversed?
RESPONSE: Recommendation 4.7 refers to several petitions before the Commission,
including one regarding access to local fiber facilities, and recommends "act[ing] on these
proceedings within the context of rigorous analytic frameworks" that "appropriately balance
the benefits ofcompetitive entry with incentives for carriers to invest in their networks."
The Commission derives its legal authority to regulate aspects of wireline networks and
services from several statutory provisions, including sections 20 1,202,251, and 271 ofthe
Communications Act. The Commission has from time to time reviewed its implementation
of these sections and may choose to modify its rules, ifwarranted, after a review of the legal,
factual, and rational basis for the rules, and after conducting an open and transparent
proceeding in which all parties have a fair opportunity to respond. The Commission has not
proposed any changes, therefore I cannot speculate as to which prior rulings, ifany, might be
affected.
3. Do you think that there would be the san1e level of fiber deployment today if the FCC had
not decided in 2003 to end the mandatory unbundling ofsuch facilities?
RESI)O SE: It is difficult for me to speculate as to exactly what would have happened if
different regulatory decisions had been made years ago. Nevertheless, we expressly
recognized in the Plan that the Commission's wholesale competition rules should
"appropriately balance the benefits ofcompetitive entry with incentives for carriers to invest
in their networks."
4. If the FCC is going to revisit its decision not to require unbundling ofpacket and fiber
facilities, a decision that I think would severely damage broadband investment, do you
believe that packet/fiber unbundling should apply only to ILECs, or to cable operators as
well? I'm not arguing for more regulation- but I am trying to get a sense for whether you
will commit not to disadvantage one teclmology, business model, or competitor in future
rulemakings.
RESPONSE: The Commission plans to engage in a comprehensive review of its wholesale
competition regulations to "establish coherent sets ofconditions under which such rules
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should be applied." The Commission will, in the course of its review, evaluate the legal and
policy constraints affecting to whom and how such rules would apply.
5. For years I have been an advocate ofencouraging and providing incentives for companies to
take risks by developing and investing their own infrastructure. The NBP appears to take a
step back on many fronts, including special access. Evidence shows that plenty of
competition exists and prices have decreased - showing the market is working. Rolling back
pricing flexibility - thereby lowering rates through further regulation - would only encourage
less competition and less innovation. Why does this FCC leadership insist on providing less
competition to the marketplace?
RESPONSE: The recently released National Broadband Plan recognizes the importance of
competition in achieving the goals for broadband deployment and maximizing its benefits
and applications for all Americans. The Plan makes certain recommendations regarding
special access services to promote broadband deployment, competition, and investment. In
this regard, the Plan recommends that the Commission comprehensively review its
regulations and develop an effective policy framework for taking expedited action to ensure
the widespread availability of inputs for broadband services, including the inputs provided by
special access services. As the Plan notes, the Commission has already taken steps with
regard to special access services. On November 5, 2009, the Commission issued a public
notice seeking comment on an appropriate analytical framework to resolve issues raised in
the pending Special Access Notice ofProposed Rulemaking. This proceeding seeks to
determine whether the COl11l11ission's rules are working to ensure that rates, terms, and
conditions for special access services, which serve business locations and cell towers, are just
and reasonable, as required by law. The Commission's staff is presently analyzing the
extensive comments it has received in response to that public notice. Further, as part of its
recently announced broadband action agenda for implementing the National Broadband
Plan's recommendations, the Commission will hold a staff workshop late in the second
quarter or early third quarter to discuss the analytical framework it should use to assess the
effectiveness of the existing special access rules. In late third quarter or early fourth quarter,
the Commission plans to propose such a framework and identi fy associated data collection
requirements, ifnecessary - critical steps toward ensuring that rates, terms, and conditions
for special access services are just and reasonable, as required by law.
6. The telecommunications industry has been a significant leader in America's economic enginc
in both times ofeconomic strength and times ofchallenge. Why does the NBP open the door
to reclassifying broadband back to the old monopoly era phonc service which will stille
investment and growth of the industry and innovation?
RESPONSE: Section 17.3 ofthe National Broadband Plan (at page 337) discusses the legal
framework for the FCC's implementation ofthe Plan. Section 17.3 notes that commenters in
the National Broadband Plan proceeding suggested two alternative approaches for FCC
implementation of the Plan, assuming that Congress does not amend the Communications
Act. First, commenters suggested that the Commission could rely on its ancillary authority
under Title I of the Act to promulgate most of the rules relating to broadband that the Plan
recommends. The Plan acknowledges that while some commenters believe Title I ancillary
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authority, coupled with specific grants ofauthority in other provisions in the Act, provides
the Commission with ample authority to implement the Plan, others expressed doubts about
the adequacy ofTitle I authority to support FCC efforts to advance broadband goals.
Second, commenters in the Plan proceeding suggested that the Commission could classify
broadband services as telecommunications services and implement certain plan
recommendations under its Title II authority. These commenters believe that such an
approach would provide a sounder legal basis for implementing recommendations in the
Plan, such as establishing direct support for rural broadband. Commenters also noted that
classifying a broadband service as a telecommunications service would not require the
Commission to apply all provisions in Title II to the service. Rather, the Commission could
exercise its forbearance authority under section 10 of the Act to narrowly tailor its use of
Title II to advance policies including those described in the Plan. The Plan acknowledges
that other commenters oppose applying Title II to broadband services, contending that Title
II is an ill-fitting legal framework for broadband services. Section 17.3 concludes with the
following statement: "The FCC will consider these and related questions as it moves forward
to implement the plan."
As I mentioned in response to question number I, after the National Broadband Plan was
released, the D.C. Circuit released its decision in Comeasl, which casts serious doubt on
whether the legal framework the Commission chose for broadband Internet services nearly a
decade ago is adequate to achieve core broadband policies, which prior Commissions thought
they had legal authority to implement. To the extent Cameasl casts doubt on the
Commission's ability to address recommendations in the National Broadband Plan, the
record generated in response to the Notice of Inquiry adopted on June 17 will help the
Commission determine how to procced.
7. Many people, including Commissioner Clyburn, have raised concerns that the FCC's plan to
reallocate broadcast spectrum to wireless broadband could have a disproportionately negative
impact on minority and female-owned stations. Drafters of the broadband plan admit that
"the reallocation mechanisms could impact the number and diversity of 'voices' in a
community or market" and recommend simply that the FCC "study" this potential impact.
Do you think that the purported benefits of more expansive wireless broadband outweigh the
benefits ofa diversified local media?
RESPONSE: Our proposal around chalmel-sharing by broadcasters that want to participate
in the auction and still broadcast their primary stream is intended to maximize the number of
"voices" in a community while simultaneously repurposing spectrum. We are just now
beginning to study the potential impacts on women and minority-owned stations, as we seek
to balance (I) making the revenue sharing opportunity equally available to anyone who
volunteers to participate with (2) maintaining programming that serves local and minority
community interests, and will share those results with you.
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8. The National Broadband Plan recommends that Congress grant the FCC and NTIA authority
to impose spectrum fees on spectrum not licensed for flexible use. The Plan quotes the
GovenUllent Accountability Office, which says that "these fees mimic thc functions of the
market." In your view, do spectrum fees "mimic the market," or is this a manipulation ofthe
market by the government and a way to force certain licensees offthe band? Please explain
your views.
RESPONSE: The National Broadband Plan calls on Congress to grant the FCC and NTIA
authority to impose spectrum fees, but only on spectrum that is not licensed for cxclusive
flexible use. This is a recommendation that has bipartisan support and has been suggested in
the past by Presidents of both parties. In my view, spectrum fees can scrve some of the same
effects that a well-functioning market produces by compelling spectrum users to recognize
thc value to society of the spectrum that they use.
9. How do the FCC's reallocation mechanisms affect low-power TV stations and translators?
In many western TV markets, as many as 30 percent ofover-the-air viewers rely on TV
translators or boosters for their service. Would a broadcast "repack" negatively impact these
viewers? Why or why not?
RESPONSE: We plan to conduct an open and transparent process to determinc how best to
provide access to the current TV broadcast spectrum for wireless broadband services. I
announced that we plan to conduct an Engineering Forum in the near future and we are
planning to initiate a Notice of Proposed Rule Making in the third quarter of this year. It is
premature to speculate how the Commission might ultimately go about making the spectrum
available. Trecognize the importance oflow-power TV stations and translators to
communities throughout the nation. I assure you that any potential impact on low-power TV
stations and translators will be fully considered in this process.
10. Verizon CEO Ivan Seidenberg rcccntly said that he ·'does not buy into the idea" that
broadcast spectrum should be reallocated for wireless broadband and that "technology will
tend to solve" any possible spectrum shortage. This seems to contradict the ational
Broadband Plan findings that a spectrum shortage is inevitable. Is it possible, in your view,
that advances in wireless technology can keep pace with demand and that more spectrum
may not be the primary answer?
RESPONSE: I believe that that the biggest threat to the future of mobile services in America
is the looming spectrum crisis. On our current trajectory, the demand for spectrum for
mobile Internet access will outstrip the supply. During our open broadband process, over one
hundred companies -technology, telecom, electronics and others, representing many billions
of dollars ofongoing investment and millions ofAmerican jobs - submitted a formal filing
stating, "Our nation's ability to lead the world in innovation and technology is threatened by
the lack of sufficient spectrum for wireless broadband applications and services." The
National Broadband Plan lays out a well-balanced plan designed to be a win-win-win for
broadcasters, mobile Internet providers, and the American people.
17
II. It is important to ensure our first responders have an uninterrupted safety network. First
responders currently work with broadcasters who utilize their spectrum to deliver emergency
messages and information to their local communities. The NBP outlines the taking of
spectrum from some entities, like broadcasters, when there has not yet becn a complete
inventory of spectrum allocation, as poscd in !-I.R. 3125, the Radio Spectrum Inventory Act.
Why is the BP getting ahead of the game by allocating spectrum whcn we don't have a
clear understanding ofwhat exactly there is to allocate?
RESPO SE: A spectrum inventory is a very useful activity that will enable better spectrum
policies across all of the spectrum bands. We have already undcrtaken an extensive review
ofcommercial uses ofthe spectrum, and as a result have identified some allocations that can
be opened to new uses. In light ofour mandate to manage spectrum efficiently, we should
take action in areas that we alrcady know have great potential to bear fruit. The process of
freeing up additional spectrum will take several years. If we wait to start that process until a
spectrum inventory is complete, we will push back the date when we can alleviate the
spectrum crunch. Laying this teclmical and regulatory groundwork now will payoff
whenever an inventory is implementcd in the future.
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QUESTIO S FOR THE RECORD
THE HONORABLE MIKE ROGERS
I. A group ofcable and satellite companies recently weighed in with Congress and thc
FCC complaining about the so-called retransmission consent process. Congress established
retransmission consent as a free market negotiation between distributors and broadcastcrs.
These distributors are asking for the government to meddle in these negotiations with
broadcasters.
It is concerning for me to hear appeals for the Federal government to intervene and affcct
potential progress at the negotiation table. Government intervention can make it much more
difficult for private parties to determine the fair-market value of the property in question.
a. Do you share my concern about the unintended consequences ofthe government even
considering intervention in the marketplace?
b. Do you believe you that the Communications Act grants the Commission the authority
to intervene in these private negotiations?
RESPONSE: I agree that the market is the preferred means to establish retransmission
consent arrangements between broadcasters and MVPS, and in the vast majority of
negotiations, the parties are able to rcach an agreement without a service disruption.
However, I do have concerns about processes that cause needless disruption to viewers when
commercial entities fail to reach a deal. As you may know, the Commission recently
solicited public comment to a Petition for Rulemaking filed by a group of 14 entities,
including small, medium, and large cable companies, as well as satellite operators and public
interest organizations, that asked the Commission to anlend our retransmission consent rules.
We will evaluate the record developed, including providing careful consideration of the
consequcnces of govenunent intervention in the marketplacc.
While the Communications Act contemplates that the terms of retransmission consent should
be resolved by agreement between private companies, the Act does provide for a formal role
by the Commission in resolution ofa retransmission consent disputc upon the filing ofa
complaint by either party. Even when the parties do not bring a formal complaint to the
Commission, if Commission staff becomes awarc that negotiations are reaching a standstill,
staff may reach out to the parties to request status updates and encourage retransmission
consent extensions so that subscribers are not subject to a loss ofprogramming.
2. As we all know, broadband is central to our economic recovery and wc are grateful to havc
the benefit ofa plan to guide us. While the Plan recognizes the strides we have made in
deploying broadband to Americans. it also discusscs areas that the Commission believes is
impeding that deployment. In particular. the broadband plan discusses the special access
market.
19
a. Would you please discuss your vision on the way forward with the special access
market?
b. When discussing the wire linc competition recommendations in Chapter 4 ofthe
National Broadband plan, did you have in mind any specific type ofcustomer?
c. Does Chapter 4 of the ational Broadband plan impose any restrictions or limitations
as to the class ofcustomer for which these services would be madc available?
RESPONSE: On November 5, 2009, the Commission issued a public notice seeking
comment on an appropriate analytical framework to resolve issues raised in the pending
Special Access No/ice ofProposed Rulemaking. This proceeding seeks to determine whether
the Commission's rules are working to ensure that rales, terms, and conditions for special
access services, which serve business locations and cell towcrs, are just and reasonable, as
required by law. The Commission's staff is presently analyzing the extensive comments it
has received in response to that public notice. Further, the National Broadband Plan makes
certain recommendations regarding special access services to promote broadband
deployment, competition, and investment. In this regard, the Plan recommcnds that thc
Commission comprehensively review its regulations and develop an effective policy
framework for taking expedited action to ensure the widespread availability of inputs for
broadband services, including the inputs provided by special access services. As part of its
recently announced broadband action agenda for implementing the National Broadband
Plan's recommendations, thc Commission will hold a staff workshop late in the second
quarter or early third quarter to discuss the analytical framework it should use to assess thc
effectiveness ofthe existing special access rules. In late third quarter or carly fourth quarter,
the Commission plans to propose such a framework and identify associated data collection
requirements, if necessary - critical steps toward ensuring that rates, terms, and conditions
for special access services are just and reasonable, as required by law.
Chapter 4 of the National Broadband Plan references all kinds ofcustomers, including those
in thc residential, small business, enterprise, wholesale, and mobile markets. The National
Broadband Plan does not impose any restrictions or limitations as to the class ofcustomer.
20
QUESTIONS FOR THE RECORD
THE HONORABLE MARSHA BLACKBURN
I. I note in your testimony that this is a plan that is in beta form and that it should change in
light of new developments. As you may know, the core copyright industries contributed
close to one-quarter ofthe real growth achieved by the U.S. economy as a whole in 2006-07.
How do we ensure both robust broadband deployment and the protection ofthe intellectual
property of those copyright industries which contribute greatly to our growth ofour
economy?
RESPONSE: The National Broadband Plan recognizes (at page 58) that "[t]he Internet must
be a safe, trusted platform for the lawful distribution ofcontent." The Plan acknowledges (at
page 17) that digital piracy is an ongoing problem, but notes that technologies designed to
prevent piracy, such as content fingerprinting, show promise. The Plan also highlights
industry-led initiatives to develop guidelines for dealing with piracy. I am optimistic that
continuing advances in technology, development ofindustry guidelines, and enforcement of
copyright laws can curb piracy without stifling innovation or overburdening lawful uses of
copyrighted works.
2. The National Broadband Plan notes that, "piracy is still present in the broadband ecosystem."
But the Plan also recommends that Congress take legislative action to "encourage copyright
holders to grant educational digital rights of use, without prejudicing their other rights." As
you know, this is a very complicated area of intellectual property law that clearly falls
outside the jurisdiction of the FCC. Are there other recommendations in the FCC Plan could
impact U.S. Copyright Policy? Also, can you give me your assurances that the FCC will not
make any recommendations for modification to U.S. copyright law without the involvement
ofthe two expert agencies that have primary jurisdiction over copyright issues, namely the
PTO and Copyright Office?
RESPONSE: The National Broadband Plan includes three recommendations that address
copyright issues. Recommendation I 1.4 suggests that Congrcss should consider taking
legislative action to encourage copyright holders to grant educational digital rights of use,
without prejudicing their other rights. Recommendation 15.7 suggests that Congress should
consider amending the Copyright Act to provide for copyright exemptions to public
broadcasting organizations for online broadcast and distribution of public media.
Recommendation 15.9 suggests that Congress should consider amending the Copyright Act
to enable public and broadcast media to more easily contribute their archival content to a
digital national archive and grant reasonable noncommercial downstream usage rights for
this content to the American people. I assure you that I will consult with PTO and the
Copyright Office before recommending modifications to copyright laws
3. Did the FCC analyze the impact of broadband expansion on copyright piracy in other
countries, like South Korea, and other than noting that ""piracy is still present in the
broadband ecosystem," does the Plan have any recommendations for making sure that
broadband expansion does not increase the amount of piracy of US copyrighted works?
21
RESPONSE: The FCC team that prepared the National Broadband Plan did not analyze the
impact ofbroadband expansion on copyright piracy in other countries. The Plan recognizes
that illegal distribution ofcopyright-protected content over the Internet is an ongoing
problem, but does not specifically recommend methods for limiting piracy ofcopyrighted
works.
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