Broadband Initiatives Are Working, But More Can Be Done

Thursday, September 1, 2011 - 00:00

Have you ever used a BlackBerry Curve, a Droid Charge, or an iPhone? How about a laptop with an aircard or Wi-Fi connection or an iPad, a Kindle or a Nook? Chances are you've answered yes at least once.

According to the market research firm International Data Corporation, smartphones outsold PCs 101 million to 92 million in the fourth quarter of 2010. These and other similar devices are revolutionizing how we live, work and play. Soon, we will see deployment of wireless-enabled devices for education, health care, environmental and utility uses.

Like railroads and electricity over 100 years ago, high-speed Internet connectivity ("broadband") can transform our economy. Not only are more of us using mobile broadband to stay connected with friends and family, but we are using it to communicate at work (increasingly from home) and for mobile commerce. We're also using it for public safety. As an example, the Federal Communications Commission's (FCC) website states "[i]t is estimated that about 70 percent of 911 calls are placed from wireless phones, and that percentage is growing." As FCC Chairman Julius Genachowski recently remarked, broadband is clearly "the indispensable infrastructure of our 21st Century economy."

Since the late 1990s, hundreds of billions of dollars have been spent by the private sector to build and operate mobile networks in the United States; however, more needs to be done. Released on June 27, 2011, the FCC's 15th Mobile Wireless Competition Report found that consumers have "dramatically increased their use of mobile data services and applications, and their adoption of data-centric devices." As a result, mobile operators will need a significant increase in available electromagnetic spectrum in order to meet the expected demand, and "a gap between mobile broadband network deployment in rural and urban areas persists."

The good news is that policy makers, principally the FCC, have stepped up efforts to foster deployment of broadband, particularly mobile broadband. For example, as part of the American Reinvestment and Recovery Act of 2009, Congress directed the FCC to develop a National Broadband Plan (the "Plan"). The FCC adopted the Plan in April 2010. It identified numerous ways in which government can influence the broadband eco-system. Allocating more, and dictating better use of, electromagnetic spectrum to accommodate demand for enhanced wireless services and ensuring that mobile operators have access to poles, conduits, rooftops and other structures on which to locate broadband infrastructure are just some of the actions identified in the Plan.

It is worth noting that under the Telecommunications Act of 1996 (TCA), local zoning authority over decisions regarding the siting of wireless infrastructure (towers and antennas) was preserved, albeit with some limitations. One of the limitations provides that a local zoning authority must act within a reasonable time to render a decision on a siting application. The FCC adopted a ruling in November 2009 which establishes that a zoning authority must render a decision within 90 days for co-locations on existing towers and 150 days for new towers.

Early this year, the FCC announced its "Broadband Acceleration Initiative." The Initiative included (a) the passage of a "pole attachment order" that intends to streamline access to utility pole attachments and reduce the costs for access, (b) an assessment of state and local regulations and practices that may impede broadband deployment in public rights of way, (c) the formation of a Broadband Acceleration Task Force to develop goals and timelines for reducing barriers to entry, and (d) a report by the FCC's Technical Advisory Council on steps the FCC can take to promote broadband buildout.

The TCA, the National Broadband Plan and the Broadband Acceleration Initiative have encouraged, to varying degrees, competition and fostered innovation. Nevertheless, in order to continue and enhance the benefits resulting from the economic activity generated from the wireless industry, wireless infrastructure issues must be addressed. Policy-making at the Congressional and federal agency level has proven effective, but more can be done, particularly with respect to deployment of wireless infrastructure.

The economic difficulties of the last few years have caused displacement and challenges for many. The mobile broadband revolution is providing opportunities for millions of Americans and will continue to be an engine for growth and global leadership for America. Federal policies should continue to prime that engine.

Douglas W. Dimitroff is a Partner and the Telecommunications Practice Team Leader with Phillips Lytle LLP. He is a co-founder and the President of the New York State Wireless Association. He can be reached at 716-847-5408.

Please email the author at ddimitroff@phillipslytle.com with questions about this article.