Over the dissent of the two Democratic Commissioners, 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 20-269 notice of inquiry (NOI) for developing the 16th 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 Sept. 22. Replies are due Oct. 6.
The NOI takes note of the role broadband has played as Americans stay home during the COVID-19 pandemic.
“Closing the digital divide—and bringing to every American the economic, education, health, civic, and social benefits that a broadband connection provides—continues to be the Commission’s top priority. As the ongoing COVID-19 pandemic has pushed more Americans to work, study, see their doctors, and stay connected to friends and loved ones through broadband connections, it serves to underscore the importance of closing this divide and ensuring that people throughout the country have access to digital opportunity. In order to ensure that the Commission’s efforts to close the digital divide are working and to guide future policymaking, each year the Commission assesses whether service providers are extending their networks to reach unserved consumers throughout the country,” it says.
The FCC notes that “[w]hile the 2020 Report acknowledged there is still work to be done to fully close the digital divide, more Americans than ever before now have access to the benefits of broadband as the Commission’s policies have created a regulatory environment to stimulate broadband investment and deployment.”
The FCC says that it once again proposes to “take a holistic view of progress in the deployment of advanced telecommunications capability, and determine whether that progress is occurring in a reasonable and timely fashion. Taking such a holistic view of deployment requires that we consider a range of speeds provided over both fixed and mobile technologies, as opposed to only a single benchmark speed, to best capture the ways Americans are using advanced telecommunications capabilities. This approach to evaluating deployment is the most faithful reading of the statute’s plain text.”
It proposes to again use a “progress-based approach” to evaluate whether advanced telecommunications capability was being deployed to all Americans in a reasonable and timely fashion, as it is tasked to do in section 706.
“We propose maintaining the evaluative framework we used in the 2020 Report. Specifically, we propose conducting an evaluation of fixed and mobile services using the same four categories as are used in the 2020 Report. We also propose to continue to rely on a five-year time period (2015-2019) in our analysis. To enable the Commission and the public to monitor consumer usage trends and marketplace developments, the 2020 Report presented deployment figures for five fixed broadband speed metrics (specifically, the 25/3 [megabits per second] fixed advanced telecommunications capability speed benchmark, plus 10/1 Mbps, 50/5 Mbps, 100/10 Mbps, and 250/25 Mbps), and for two mobile 4G LTE speed metrics (5/1 Mbps minimum advertised speed and 10/3 Mbps median speed). We propose to use these same metrics for our upcoming Report, and we seek comment on that proposal,” the NOI says.
“In the 2020 Report, we found that while subscribers of both mobile and fixed broadband service may substitute between the two when accessing certain uses, programs, and applications, the two services are not yet functional substitutes for all uses and customer groups. Do commenters agree? Have there been changes in marketplace and technological conditions since the 2020 Report that justify a different evaluative approach? If so, then how would we adjust our evaluative approach to account for such a conclusion? Should the increasing deployment of 5G wireless services affect our analysis and, if so, how?” it continues.
It proposes to maintain the 25/3 Mbps benchmark for fixed services and seeks comment on this proposal. “In the 2020 Report, we found that a single benchmark was inappropriate in the mobile wireless context due to the inherent variability in the performance characteristics of mobile service both geographically and temporally, as we had also noted in previous Reports. We therefore concluded that retaining the approach of using multiple metrics continued to be appropriate. Although we did not assert that 5/1 Mbps is a mobile advanced telecommunications capability benchmark, we concluded that the 5/1 Mbps minimum advertised speed serves as a check to ensure that the 4G LTE deployed to a given geographical area has sufficient backhaul and other capabilities to offer LTE in a manner consistent with being an advanced telecommunications capability,” it says. It seeks comment “on whether to take a similar approach when evaluating mobile speeds in the next Report.”
“Further, the Commission will also begin collecting 5G New Radio (NR) deployment data this year, to ensure that both the Commission and consumers have an accurate account of 5G deployment. We seek comment on whether and how these data should be used,” it adds.
It proposes to continue “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 [gigabyte per second] per 1,000 students and staff.”
It seeks “comment on whether deployment in Tribal areas still lags compared to deployment in non-Tribal areas, as well as other considerations, such as barriers to deployment on Tribal lands.”
As for deployment data sources, it says, “We found in the 2020 Report that despite its well-known limitations, the FCC Form 477 deployment data for fixed technologies are currently the most reliable and comprehensive dataset with which to assess availability of fixed services. The Digital Opportunity Data Collection, along with the Broadband DATA Act—which largely ratifies the Commission’s approach to broadband mapping in the Digital Opportunity Data Collection—will make significant improvements to our collection of broadband deployment data, and will ultimately result in the collection of more precise fixed data. However, the improved data will not be available for use in the upcoming Report. We recognize that using publicly-available data increases the transparency of our analysis, permitting the public to independently assess our broadband deployment data, and also has the benefit of using a consistent unit of measurement for evaluating progress in deploying advanced telecommunications capabilities. We therefore propose to continue to use the FCC Form 477 data to evaluate deployment of fixed broadband services. We seek comment on this proposal.”
For mobile services data, it proposes to continue to supplement provider-reported data with Ookla data.
Commissioners Jessica Rosenworcel and Geoffrey Starks criticized the findings of the report released earlier this year and said the NOI is set up to lead to the same result.
Commissioner Rosenworcel said, “By seeking comment, as we do here, on where service is and is not, we should be developing a record that supports an honest assessment of the availability of broadband across the country. But the ugly truth is that when the agency released its last Broadband Deployment Report earlier this year it concluded that broadband deployment was ‘reasonable and timely’ nationwide. In other words, it found all was well. It clapped its hands and said job done.”
She added, “So here we go again. We are setting ourselves up for making all the same mistakes we did in our last report. We have not updated our methodology. We have not modernized our thinking about what is truly broadband. We have not suggested that we will give serious thought to real impediments like cost. At a time that we desperately need a candid accounting from the FCC about the state of broadband in this country, the agency is stubbornly oblivious to how its reporting is at odds with the lived experience of so many people in this country.
“This is disappointing—because it doesn’t have to be this way. This approach fails to meet the current moment. It simply does not lay the foundation for the honest assessment we require to ensure broadband for all. I regretfully dissent,” she said.
Commissioner Starks said, “Six weeks into the COVID-19 pandemic, the Commission released its 2020 Broadband Deployment Report. Even in those early weeks, it was already clear that this pandemic would bring our failure to close the digital divide into the sharp relief. Releasing a report that confidently touted the timely deployment of broadband—just as more than 15 million students found themselves without the broadband connections and devices required to participate in distance learning—demonstrated how far this annual undertaking has departed from reality. In gathering information for next year’s report, the Commission should have taken a different approach.
“Instead, the Commission continues to repeat its mistakes. As I noted in my dissent from last year’s Notice of Inquiry, I fundamentally disagree with the approach of comparing broadband providers’ deployment in one year against their deployments in prior years to measure ‘progress.’ I continue to believe this approach gives us little understanding of internet inequality and the ways to combat it,” he said.
He continued, “We also continue to rely on the Commission’s misleading Form 477 data. I am disappointed that, despite broad recognition that Form 477 has distorted our view of the digital divide, the Commission did not develop alternatives in time for this year’s Notice of Inquiry. As we approach the Broadband DATA Act’s September 21, 2020 deadline for new mapping and data rules, the entire Commission should commit to making this the last time we rely on this flawed data set.
“Because the proposals in this Notice of Inquiry are likely to produce yet another report that misrepresents internet inequality in the United States, I respectfully dissent,” he concluded. —Lynn Stanton, [email protected]
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