FCC's plan for free broadband could hit many legal snags

It appears the FCC is looking to fast-track the idea of a nationwide wireless broadband network that would require the licensee to use 25 percent of its capacity to offer two-way free broadband services along with open access (See story No. 1). Will the plan ever get off the ground?

There are multi-facets of the plan that could run into legal snags. The FCC has proposed combining the 2155-2175 MHz band with the 2175-2180 MHz band to create a 25 megahertz block of spectrum that would support a single nationwide license. Attached to the plan is the requirement for a filtering system that would be required for the free Internet access part to protect children from obscene content as measured by community standards. Blocking pornography in general can run into a host of problems. For one, legitimate web sites are often blocked in the process since they often share a single numerical Internet address with dozens of other sites. That is an issue the American Civil Liberties Union is raising right now in California, where Gov. Arnold Schwarzenegger is asking ISPs to remove child pornography from existing servers and blocking channels that pass on illegal material. Of course, the FCC will allow end users to opt out of the filtering, but will that be enough to fight off potential legal challenges?

Of course, we can also expect a number of challenges from the nation's largest wireless operators. The most notable objection in the past (the same plan was proposed by M2Z in 2006) is the fact that it wouldn't be fair to tailor an auction to a specific business model.

And T-Mobile already made a filing saying it was concerned about interference and the fact that the commission is moving so quickly that it might not take adequate steps to ensure no interference will exist. Qualcomm is also vehemently opposed. The company, which holds licenses for MediaFLO in adjacent bands, is worried about interference too and has warned that Chairman Kevin Martin's free broadband plan could ruin the credibility of the AWS Auction 66, unfairly devaluing the licenses won in 2006, according to an article in Ars technica.

The opposition, however, doesn't seem to bother Martin at all. During a hearing at the House Energy and Commerce Committee earlier this month, Martin said he didn't buy the interference argument. "They want us to put certain power limits on it and make it basically just available for one-way distribution of service ... So the only people who would be able to really take advantage of the AWS spectrum would be whoever owned the spectrum right next door in that geographic area. They really want it to be reserved to offer mobile video services, the kind of MediaFLO Qualcomm provides."

By all accounts, the FCC appears to be prepared to ram the plan through, regardless of the potential legal wranglings. And perhaps the bigger question is: Would such an auction generate any interest? Given all of the various stipulations, including an Internet filter, the requirement for free access and specific rollout requirements, how attractive is such a business plan?

There's a lot to consider yet the FCC is only giving 14 days to comment and a seven-day reply period.--Lynnette