FORBEARANCE FOR CABLE MODEM SERVICE CALLED ‘TRICKY’

LAS VEGAS -- Using forbearance proceedings to deal with the court decision overturning the FCC’s definition of cable modem service as an information service “may be a tricky path,” said Daniel Gonzalez, aide to FCC Comr. Martin. FCC staffers speaking on a Tues. panel at the USTA convention here also said Commission decisions on petitions for reconsideration of the Triennial Review Order (TRO) would take time, but some parts could be decided by the end of the year.

Among other things, the FCC hasn’t decided whether modem services are dominant, Gonzalez said. Christopher Libertelli, aide to FCC Chmn. Powell, also said forbearance actions were “theoretically possible,” but questions remained. He said, for example, that the Commission must make sure there’s a good enough public record to justify forbearance. Easing modem regulation from “the top down” instead of from the bottom up “would take time,” Libertelli said. Matthew Brill, aide to Comr. Abernathy, said that if the courts didn’t overturn the cable modem decision, the industry should expect “a lot of proceedings” resulting from the decision by the 9th U.S. Appeals Court, San Francisco, including forbearance petitions. The Commission should wait for the court proceedings to “play out” before making any decisions, he said. Brill also said the FCC should resolve both DSL and cable modem classifications at the same time.

It “will take some time” for the FCC staff to consider the comments on reconsideration petitions for the TRO, Libertelli said. He said Powell believed the decisions on the petitions could be broken down into smaller parts, allowing actions on some by the end of the year. Gonzalez called the TRO decision “a very bold step” and said he had seen announcements of some telecom investments as a result of the decision. Brill said the FCC also would need to clarify some portions of the TRO such as the distinction between enterprise loops and mass market loops. Gonzalez said the FCC also needed to clarify the definition of green field developments.

The FCC is likely to begin a rulemaking on voice-over- Internet protocol (VoIP), rather than a notice of inquiry, by the end of the year, Libertelli said. He said there were “different flavors of VoIP,” such as VoIP for private networks, Vonage-type services and peer-to-peer VoIP, and “different policies might apply to different flavors.” Brill agreed that VoIP was “not one single thing,” and different types could be treated differently. He said it would be difficult to deal with VoIP issues via petitions for reconsideration, so a rulemaking was likely. Gonzalez said the rulemaking also probably should deal with VoIP issues such as universal service.