Senator Burns Challenges FCC on Broadband Internet Access

(January 12, 1999)  Sen. Conrad Burns, Chairman of the Senate Communications Subcommittee, criticized the FCC's interpretation of Section 706 of the Telecommunications Act of 1996, in a strongly worded letter to Chairman William Kennard on January 11.  Burns asserted that the FCC has failed to encourage the development of highspeed Internet access as required by § 706.

Section 706(a) requires that the Federal Communications Commission encourage the deployment of advanced telecommunications capability in the local telecommunications market, including through regulatory forbearance.

Moreover, §706 requires the FCC to conduct an inquiry into the availability of advanced telecommunications capability to all Americans.  (The FCC is currently conducting such an inquiry in Common Carrier Docket No. 98-146.)

Sen. Conrad Burns (R-MT) wrote that "Less than 2% of American households are currently being served by high-speed capability such as cable modems and ADSL.  This is a far cry from "all Americans" as required under the Act. In fact, it's doubtful that advanced telecommunications capability as defined in Section 706 is being deployed at all."

Sen. Burns specifically pointed to the FCC's Memorandum and Order of August 6, 1998.  "I am very concerned that the Commission has misunderstood the purpose and intent behind Section 706. I proposed Section 706, and my colleagues in the Conference accepted it, as a fail safe mechanism. One of the two specific objectives of the Act was to encourage the rapid deployment of new telecommunications technologies. As the bill became more and more regulatory during the Conference, Members became concerned that the Act may not meet this goal and that some sort of backup authority must be included in the Act to give the Commission broad authority to eliminate excessive regulation if it hindered deployment."

The FCC had concluded that "we find nothing in the legislative history of Section 706, to indicate that Congress gave us independent authority in Section 706(a) to forbear from the provisions of the Act."

Sen. Burns also criticized the FCC's "separate affiliates" proposals.   The Telecom Act generally required the incumbent local exchange carriers (ILECs) to open their networks to competitors.  The FCC has interpreted this to include broadband services, in addition to traditional circuit switched networks.  The ILECs have argued to the FCC -- unsuccessfully -- that because of the enormous investment associated with developing broadband access, this service should be exempted.  The FCC proposed in its August order that the ILECs form "separate affiliates" to provide exempt advanced services.

Sen. Burns criticized this too.  "I believe the Commission has made a deplorable error in requiring the ILECs to provide advanced services through a separate subsidiary in order to receive a more forward looking set of regulations that would incent vigorous deployment. I fear that such a requirement will impose such inefficiency that it will limit the deployment of xDSL exclusively to businesses and high income households. As a result, most Americans will be left behind."

Tech Law Journal asked  Ben O'Connell, a staff assistant to Sen. Burns, if there would be hearings on this matter.  He said that the committee has not yet set any hearing schedule.  "This, however, is a good possibility for another topic of a hearing."  Asked if Burns would introduce legislation, O'Connell said, "We very well may. ... If nothing changes in the next few weeks, legislation may be the only way we can fix the problem we see."