At the request of various parties, the FCC extended the reply comment deadline from last Wednesday until today. While this will give some parties additional time to prepare comments, it will not have much effect on the debate since the authors of the ABC and RLEC Plans did not elaborate extensively in their initial comments. In other words, there is not that much new for critics and opponents of the Plans to address. It also will have little effect on the timeline for action, which will likely be this fall, possibly as early as late October. The most important aspect of the comments being filed today are the responses from the Plans’ authors to the many criticisms their proposals received from local competitors (primarily cable operators), smaller wireless and VoIP providers, state regulators, and consumers. You can be assured that the critics and opponents of the Plans will read these reply comments carefully and then file their own ex parte responses.
The authors of the Plans made clear in their initial comments that their proposals were properly balanced and that, if the Commission began to select among the proposals in the Plans, keeping some and jettisoning others, their support for Commission action would evaporate. This is both a reality and a tactic. No doubt both Plans are precariously balanced, with the various authors making compromises among themselves to come together. Not surprisingly, some of the compromise proposals have a greater public policy justification, while others are more clearly driven just by self-interest. As such, the Plans can be picked apart, and the FCC is likely to scuttle certain of the proposals, which may strain the ties binding the authors together. But that means the Plans’ authors are just like all the other interested parties who are going to have to make tough decisions in the coming weeks.
The FCC Chairman and Commissioners want to act, and they want serious and precise proposals to remedy problems with the Plans. They also want the same from the Plans’ authors to address the criticisms. So, we are now entering the stage of real negotiations, where no one has the luxury of just asking for everything. Each party will need to try to figure our what it really has to have and what the Commission needs as well to find the solution in the public interest. The competent players will know where these lines cross.
Thomas Cohen is a partner at Kelly Drye & Warren's Washington, D.C. office. His practice focuses on matters involving communications, including telecommunications, wireless and media, the Internet, privacy and government relations.
Mr. Cohen has more than 30 years of experience in the communications and telecommunications industry sector, first as a government policy maker, serving for over a decade as assistant general counsel for legislation at the Federal Communications Commission (FCC) and as senior counsel for the Senate Commerce Committee. He then was a founder and principal in firms assessing and developing communications and telecommunications properties and advising businesses. At Kelley Drye, Mr. Cohen assists clients with a variety of aspects of communications law, including federal and state administrative and legislative advocacy, business-related legal matters and litigation.