Friday, May 07, 2010

Will FCC enforce USF build out requirement?

It remains to be seen to what extent this week's decision by U.S. Federal Communications Commission Chairman Julius Genachowski to subject Internet protocol-based telecommunications to some but not all requirements of Title II of the Communications Act of 1934 will achieve his goal of bringing a badly needed upgrade to the U.S. telecommunications infrastructure.

Genachowski has described the challenge of replacing infrastructure designed many years ago to provide voice telephone service to an IP-based system that serves all Americans no matter where they make their homes and businesses as the "critical infrastructure challenge of our generation." That infrastructure challenge is greatest at the local level -- the so-called "last mile" of the system that connects to customer premises.

As explained by FCC General Counsel Austin Schlick, Genachowski's decision to apply Section 254 of Title II of the Act would support the FCC's plans to retask the Universal Service Fund (USF) that subsidizes service in high cost areas from POTS (Plain Old Telephone Service) to IP. As amended by the Communications Act of 1996, Section 254 requires the FCC to pursue policies to achieve access to advanced telecommunications and information services in all regions of the nation including those in rural and high cost areas that are "reasonably comparable" to services and rates offered in urban areas.

It's unknown at this point to what extent the FCC will as part of its plan to revamp the Universal Service Fund to help achieve ubiquitous access will enforce (or alternatively grant forbearance from) another provision of the Act designed to put teeth in the USF via a build out requirement. Title II Section 214(e)(3) empowers the FCC to "determine which common carrier or carriers are best able to provide such service to the requesting unserved community or portion thereof and shall order such carrier or carriers to provide such service for that unserved community or portion thereof." Notably, Section 214(e)(3) is absent from Schlick's explanation of the evolving FCC policy.

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