Over the dissents of Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks, the FCC today adopted a notice of inquiry to gather input for its next “section 706 report” on deployment of advanced telecommunications capability.
Comments on the General docket 19-285 notice of inquiry (NOI) for developing the 15th broadband deployment report—also known as a section 706 report, after the provision in the 1996 Telecommunications Act that mandated the reports, which the FCC has called by various names through the years—are due Nov. 22. Replies are due Dec. 9.
Commissioners Rosenworcel and Starks criticized the notice of inquiry for relying on imprecise data, for employing an out-of-date definition of broadband, and for judging success based on whether progress is being made rather than on whether broadband is reaching all Americans, among other things.
The NOI says, “Consistent with past Broadband Deployment Reports, we propose to take a holistic view of progress in the deployment of advanced telecommunications capability and whether that progress is occurring in a reasonable and timely fashion. Taking such a holistic view of deployment requires not only that we consider one benchmark speed, but rather a range of speeds, provided over both fixed and mobile technologies, to best capture the ways Americans are using advanced telecommunications capabilities. We believe that this approach to evaluating deployment is the most faithful reading of the statute.”
It noted that the 2019 report released earlier this year made its assessment based on a comparison of “deployment of fixed and mobile services as of December 31, 2017, to deployment of those services each year since 2013. In doing so, we reiterated that, by using the language ‘is being deployed’ in section 706, Congress intended that the Commission evaluate the current state of deployment to all Americans; Congress did not ask us to determine whether each and every American is served at this moment. We propose to use this progress-based approach for this next Broadband Deployment Report, and seek comment on doing so.”
The NOI notes that the 2019 report did not treat fixed and mobile broadband services as full substitutes.
“We propose maintaining the evaluative framework we used in the 2019 Report. Specifically, we propose conducting an evaluation of fixed and mobile services using the same four categories as used in the 2019 Report. We also propose to continue to rely on a five-year time period (2014-2018) in our analysis. To enable the Commission and the public to monitor consumer usage trends and marketplace developments, the 2019 Report presented deployment figures for five speed metrics for fixed services (specifically, the 25 Mbps/3 Mbps fixed advanced telecommunications capability speed benchmark, 10 Mbps/1 Mbps, 50 Mbps/5 Mbps, 100 Mbps/10 Mbps, and 250 Mbps/25 Mbps), and for two speed metrics for mobile LTE (specifically, 5 Mbps/1 Mbps and 10 Mbps/3 Mbps). We propose to use these same metrics for our upcoming Report, and we seek comment on that proposal,” the NOI said.
However, it also asked for input on whether there have been “changes in marketplace and technological conditions that justify a different evaluative approach.”
It proposed maintaining 25 megabits per second downstream/3 Mbps upstream as the benchmark for fixed broadband services.
It noted that it did not establish a single mobile speed benchmark for the 2019 report and that it “determined in the 2019 Report that 4G LTE is the best proxy for what is ‘advanced’ in today’s mobile services market, but we did not establish 5 Mbps/1 Mbps as the advanced telecommunications capability benchmark for mobile services. Instead, we supplemented our assessment of relevant FCC Form 477 data with Ookla’s consumer speed test data at a median speed of 10 Mbps/3 Mbps or higher at a county level. We believe this approach accounts for certain limitations in the current FCC Form 477 mobile data, while helping us better understand the extent to which American consumers today are receiving speeds higher than 5 Mbps/1 Mbps. Overall, retaining this methodology allows consistent metrics by which we can evaluate whether mobile advanced telecommunications capability is improving for American consumers. We seek comment on whether to take a similar approach when evaluating mobile speeds in the next Report.”
For schools and libraries, it proposed continuing “to measure the availability of advanced telecommunications capability in schools and classrooms by using our short-term goal of 100 Mbps per 1,000 students and staff and our long-term goal of 1 [gigabit per second] per 1,000 students and staff.”
Regarding tribal lands, “[w]e seek comment on whether deployment on Tribal lands still lags compared to deployment in non-Tribal areas. We also seek comment on additional considerations, such as difficulties involving rights-of-way, that could be preventing deployment that might otherwise occur,” the NOI said.
It also asked for input on the data and sources from which the FCC draws for preparing the section 706 report.
Finally, it sought input on its general approach to the report.
“We described in the 2019 Report the many actions the Commission has taken to encourage deployment of advanced telecommunications capability and close the digital divide. These actions were central to our finding in the 2019 Report that the Commission’s policy efforts are now encouraging the deployment on a reasonable and timely basis of advanced telecommunications capability. The next Report will examine our actions to spur broadband deployment and close the digital divide since issuing the 2019 Report. We seek comment on the ongoing effects of these efforts in spurring broadband deployment, as well as any additional efforts we might undertake. We also seek comment on the effectiveness of USF [Universal Service Fund] funding in driving the deployment of advanced telecommunications capability. Has the Commission been effective in its efforts to increase deployment by targeting USF funding to unserved areas in order to extend the reach of networks to all Americans? What more could or should we do to expand access to spectrum to support or supplement wireless and satellite broadband services?” the NOI said.
In her dissenting statement, Commissioner Rosenworcel criticized the FCC’s conclusion in its last section 706 report that advanced communications capability is being deployed nationwide in a reasonable and timely fashion.
“This inquiry was an opportunity to fix what we got wrong in our last assessment. It was an opportunity to get it right—and reexamine whether or not broadband is available to all Americans. We need an honest accounting. This inquiry was the perfect place to do it. But what we adopt here comes up short,” she said.
“At the outset, we know that the data that informed our last assessment is seriously flawed. After correcting for a massive data fumble, the FCC tallied up broadband and determined that there are only 21 million people nationwide without broadband. But these numbers derive from a methodology with a grave limitation. If a service provider claims that they serve a single customer in a census block, then we assume service throughout. The resulting data systematically overstates service across the country and has been the subject of endless criticism from consumers, carriers, and Congress. As a result, the agency kicked off a new granular data initiative to better understand and map the broadband gaps across the country. But there is no evidence we will use updated numbers here, just a head-in-the-sand commitment to using the same methodology we did last time and a refusal to ask hard questions about what we can do now to ensure our next count is more accurate,” Commissioner Rosenworcel continued.
She also criticized the majority for not updating its definition of what constitutes broadband for the purpose of the section 706 assessment.
“It has been nearly five years since the FCC updated its broadband standard to 25 megabits per second. But new technology comes at us fast. In fact, three years ago this country’s largest broadband provider began rolling out gigabit service to just shy of 60 million homes and businesses—a process it completed. This agency needs to keep up. It’s time for the FCC to adopt a standard of 100 megabits per second. I regret we are so unambitious that we do not even consider this here,” Commissioner Rosenworcel said.
“Moreover, we need to revamp our thinking about upload speeds. At present, our standard is 3 megabits per second. But this asymmetrical approach is dated. We need to recognize that with extraordinary changes in data processing and cloud storage, upload speeds should be rethought. Download speeds are all about consumption, but upload speeds provide us with opportunities for production. From precision agriculture to video development to interactive data operations—the way we use broadband to create is changing. This is exciting, but our failure to even ask such questions here does not bode well,” she continued.
“Finally, this inquiry fails to explore broadband adoption and its contributing factors, including price, digital literacy, and relevance. If the FCC is serious about conducting a full inquiry into broadband availability nationwide, it should do more to seek comment on these topics.
“I hope as this inquiry unfolds the FCC will be open to these ideas. I hope that we can use the record that develops to build a bolder vision for our broadband future. But I fear that the foundation laid by this inquiry is insufficient and the outcome is preordained. I dissent,” she concluded.
In his dissenting statement, Commissioner Starks said, “Internet inequality is deepening in the U.S. with millions of Americans unable to access an affordable, high-quality broadband connection. Ensuring that all Americans have access to high quality, affordable broadband is the Commission’s most important task. … The law directs the FCC to ‘determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.’ This statutory directive is clear, but the direction we take today with regard to the Broadband Report is far from it.
“Instead of conducting an inquiry to determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion, the majority has, for the past two years, conducted an inquiry that compares broadband provider’s deployment in one year against their deployments in prior year to measure ‘progress’ in broadband deployment,” he continued. “Today’s ‘Notice of Inquiry’ tees up the same test, and I don’t agree. This method of measuring progress tells us nothing about broadband deployment in areas where carriers haven’t deployed and have no plans to do so. It does little to help us to understand the deepening state of internet inequality in the U.S. and it does nothing to prepare us to address the problem.”
Like Commissioner Rosenworcel, Mr. Starks took the majority to task for contemplating the continued use of census block–level data for the section 706 assessment.
“The Notice of Inquiry acknowledges the flaws as follows: “Though staff examine FCC Form 477 data for quality and consistency, the data may understate or overstate deployment of services to the extent that broadband providers fail to report data or misreport data,’—as did the last report, and the last Notice of Inquiry, and the prior report. This is the same flawed data that, against my objection, we are using to target an additional $16 billion in Universal Service support over the upcoming decade. Good decisions require good data, and we have to do better than this. The Commission can’t just acknowledge and disclaim the problem. We have to fix it.
“Therefore, I respectfully dissent,” Commissioner Starks said. —Lynn Stanton, [email protected]
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