TR Daily Over Dems’ Dissents, FCC Calls Broadband Progress ‘Reasonable,’ ‘Timely’
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Friday, February 2, 2018

Over Dems’ Dissents, FCC Calls Broadband Progress ‘Reasonable,’ ‘Timely’

Over the dissents of Democratic Commissioners Mignon L. Clyburn and Jessica Rosenworcel, the FCC today issued its latest “section 706 report,” or “broadband deployment report” as the latest version is called, concluding that the 2015 decision to classify broadband Internet access as a common carrier service slowed the deployment of advanced communications capability “dramatically.”

Section 706 of the 1996 Telecommunications Act directed the FCC to determine if advanced communications capability is being deployed “in a reasonable and timely fashion,” and to take action if it is not.

Today’s report in GN docket 17-199 concludes that the FCC was right when it held in its 2016 section 706 report that advanced telecommunications capability was not being deployed to all Americans in a reasonable and timely fashion — but that the fault for that could be laid at the Commission’s door, because its policy at that time “was not adequately ‘encourag[ing]’ the deployment of advanced telecommunications capability.”

However, since then, the Republican-led Commission has “taken concrete actions to reduce regulatory barriers to the deployment of wireline and wireless infrastructure, constituted a Broadband Deployment Advisory Committee to assist in these efforts, reformed the legacy high-cost universal service program to ensure accountability and introduce opportunities for new entrants through reverse auctions, modernized our rules for business data services to facilitate facilities-based competition, authorized new uses of wireless spectrum both terrestrially and in the sky, and repealed the heavy-handed regulations of the Title II Order by returning to a light-touch approach to broadband Internet access,” the Republican majority concluded in the report.

“With these changes in policy to accelerate deployment, we believe that the Commission is now encouraging the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans. That finding, however, does not undermine our continued commitment to closing the digital divide. Far too many Americans remain unable to access high-speed broadband Internet access, and we have much work to do if we are going to continue to encourage the deployment of broadband to all Americans, including those in rural areas, those on Tribal lands, and those in schools and classrooms,” it added.

As reported when the draft report was circulated (TR Daily, Jan. 18), the document concludes that fixed and mobile broadband services are not full substitutes and that it is “appropriate to examine the deployment of fixed and mobile services, both individually and in conjunction with one another.”

It also leaves the broadband speed benchmark unchanged from 25 megabits per second downstream/3 Mbps upstream.

In her dissenting statement, Commissioner Clyburn said, “A whopping 66.2% of Americans living in rural and Tribal areas — as compared to 2.1% of Americans living in urban areas — still lack access to fixed 25/3 broadband. These are tens of millions of our fellow citizens who lack access to broadband putting them at a severe disadvantage when it comes to robust opportunities in education, healthcare, government services, and civic participation.

“Instead of grappling with this unfortunate reality, this report blatantly suggests that Congress did not intend for the FCC to meet a rigid requirement that each and every American be served. Pardon me? Congress’ intent when it comes to these reports could not have been any clearer. The plain language of Section 706 states ‘the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.’”

The report emphasizes “[t]he use of the present progressive tense — ‘is being deployed’ — as well as the language requiring an evaluation of whether that deployment is ‘reasonable and timely’ indicates that Congress intended that the Commission evaluate the current state of deployment to all Americans, not a rigid requirement that each and every American be served at this moment.”

Commissioner Clyburn also said, “Additionally, the report includes satellite service in its analysis — a factor that has been recognized by previous reports as likely to overstate deployment to a significant degree. Despite this report’s recognition of the same potential overstatement, the majority opted to include such data in their analysis — resulting in a significant increase in statistics showing access to broadband.”

“Last, but certainly not least, the report bases its finding of timely broadband deployment pursuant to section 706(b) on projected deployment based off a laundry list of actions the FCC took in 2017. Specifically, the report states ‘while the December 2016 Form 477 data in the report does not yet reflect the beneficial effects of the Commission’s actions in 2017, the marketplace is already responding to the more deployment-friendly regulatory environment now in place.’ This reminds me of the majority’s approach to competition in the Business Data Services Order, where potential competition equated to actual competition. Here the majority unsurprisingly and incorrectly states that projected reasonable and timely deployment is the same as actual reasonable and timely deployment,” Commissioner Clyburn said.

In her dissent, Commissioner Rosenworcel said, “This report concludes that in the United States the deployment of broadband to all Americans is reasonable and timely. This is ridiculous — and irresponsible. Today there are 24 million Americans without access to broadband. There are 19 million Americans in rural areas who lack the ability to access high-speed services at home. There are 12 million school-aged children who are falling into the Homework Gap because they do not have the broadband at home they need for nightly schoolwork. Ask any one of them if they think the deployment of the most essential digital age infrastructure is reasonable and timely and you will get a resounding ‘No.’ To call these numbers a testament to our national success is insulting and not credible.”

She added, “Moreover, I believe that the future belongs to the bold. This is the country that put a man on the moon. We invented the Internet. History demonstrates that when we set audacious goals we can do big things. We need to do better than dream small if we want to lead the world. It’s past time for the FCC to go big and update its national broadband standard from 25 Megabits to 100 Megabits. On this point we have work to do — because at this speed when you factor in price the United States ranks only 26th in the world. Our unwillingness to own up to this here has consequences — we shortchange our children, our future, and our digital economy.”

Chairman Pai said, “The report also indicates that the pace of both fixed and mobile broadband deployment declined dramatically in the two years following the prior Commission’s Title II Order. However, the report also discusses how, over the course of the past year, the current Commission has taken steps to reduce barriers to infrastructure investment and promote competition in the broadband marketplace. Taken together, these policies indicate that the current FCC is now meeting its statutory mandate to encourage the deployment of broadband on a reasonable and timely basis.

“But while we are now headed in the right direction, we have much to do. Far too many Americans still lack access to high-speed Internet. That’s why the FCC’s top priority under my leadership remains bridging the digital divide and bringing digital opportunity to all Americans,” the Chairman added.

Commissioner Mike O’Rielly, who supported the adoption of the report, said, “Given the tortured process previous Commissions have used to conduct this work, it is refreshing to see one conducted and completed in an honest and straightforward manner. Instead of presupposing the answer and then working backwards or, alternatively, being afraid to make any determination, the Commission started with a public inquiry to secure the appropriate collection of data, proceeded to its analysis, and reached a corresponding conclusion detailed in this report. This Commission was actually willing to do the expected work and let the plethora of data provided prove the case. What a novel concept!”

Commissioner O’Rielly added, “Contrary to the criticism of some, a positive finding under this item does not mean that the Commission will stop its efforts to ensure every American who wants broadband access has it. It personally pains me to know that there are so many Americans who have inadequate broadband with little hope of improvement. Nothing in this item or any other will keep me from pushing to address this situation in a timely, thoughtful, and cost-efficient manner. To be abundantly clear, passage of this item does not disrupt the work that will come tomorrow, the next day, or the many days to come. I am committed to ensuring the Commission does all it can, including removing barriers to deployment as referenced in the law, to bring broadband throughout our diverse, geographic landscape.”

However, he added, “Where I think the item gets it completely wrong is its treatment of wireless broadband. On multiple fronts, the report minimizes the enormous value and market realities brought forth by wireless broadband. In particular, I disagree with the unwillingness of the Commission to set a wireless benchmark. To argue year after year that the data is lacking amounts to an insufficient excuse. The Commission is more than capable of determining a justifiable, sensible benchmark for wireless broadband services, and indeed it has done so for purposes of Mobility Fund Phase II. The 10/1 Mbps suggested in the NOI was a reasonable place to start, but I was willing to be convinced of some other standard. However, abdicating this responsibility, as the report does, boggles the mind and diminishes the value of this report.”

“More importantly, I disagree with the Commission’s reluctance to firmly acknowledge that wireless broadband is a substitute for wireline service. It is not a mere complement. Every day, more and more consumers are flocking to wireless broadband and the mobile experience it provides despite the differences in speed. In other words, consumers, especially in the less affluent and younger populations, are willing to trade speed for flexibility. This is not too dissimilar to how consumers were willing in the early 2000s to trade wireline voice call quality for inferior wireless voice service that offered mobility. Today, wireline voice service subscription is a mere pittance compared to its former self. Further, the number of U.S. consumers that have gone completely wireless has exceeded 52 percent. That trend will continue, if not accelerate, especially with the near ubiquitous availability of 4G LTE,” Commissioner O’Rielly said.

Regarding the decision to look at progress, rather than a snapshot, Commissioner Brendan Carr said, “As a policy matter, it makes sense that Congress would task the Commission with this type of progress-based inquiry. Assessing the pace at which advanced telecommunications capability is being deployed provides far more — and more helpful — information than a binary inquiry into whether or not all Americans already have access to such capability. But of course, the Commission’s approach to Section 706 during the prior Administration did not reflect fealty to the statutory text as much as an interest in expanding the scope of the Commission’s authority.”

Echoing the other two Republican Commissioners, he said, “[N]one of this is to say that our job at the FCC is done. As the Report makes clear, far too many Americans remain unable to access high-speed broadband, and we have much more work to do if we are going to encourage the deployment of broadband to all Americans.”

“Nor do I have any objection to identifying aggressive speed or deployment goals. By all means, let’s shoot for the moon. But the question we must answer in this Report is the one Congress set out in Section 706. Congress specifically defined advanced telecommunications capability ‘without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications.’ Whatever one thinks we should be aiming for as an agency or a country, the benchmarks identified in this Report certainly enable users to originate and receive high-quality voice, data, graphics, and video within the meaning of Section 706. Indeed, the record shows that the technologies meeting the Report’s benchmarks enable HD video streaming, online gaming, and HD video calling, among other advanced capabilities,” Commissioner Carr added. —Lynn Stanton, [email protected]

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