FCC Looks Far, Wide For Advanced Telecom Metrics

Asks about data allowances, availability of competition
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The FCC has launched a Notice of Inquiry (NOI) to solicit input on its next Broadband Progress report, and it wants to take an expansive look--zero rating, competitive alternatives, prices--at what might impede broadband deployment.

"We continue to believe that the Commission should examine factors that affect access to broadband services beyond mere physical network deployment when making our determination of whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely manner," the NOI said. "In addition to servicequality and latency, we seek comment on whether non-speed service characteristics such as data allowances, adoption, and the availability of competitive alternatives should be additional factors in our inquiry. Are any of the factors not pertinent to our ultimate determination of whether advanced telecommunications capabilities are being deployed to all Americans in a reasonable and timely manner? If so, which factors and why, and how can we measure them?" 

The progress report is the one that has been concluding in recent years that advanced telecommunications is not being deployed in a reasonable and timely manner, empowering the FCC to regulate broadband in the interests of achieving that goal.

The "reasonable and timely manner" language stems from the sec. 706 Communications Act test for deployment.

The interpretation of that congressional mandate in the otherwise deregulatory 1996 Telecommunications Act is a hotly debated topic among ISPs.

Commenters on the Notice of Inquiry teeing up the next report have until Sept. 21 to file comments and reply comments.

In its most recent (2016) progress report, the FCC again concluded broadband buildouts were not meeting that "reasonably and timely" metric.

In the NOI released this week, the FCC is tentatively proposing to retain its "capable of 25 Mbps downstream/3 Mbps upstream" definition of high-speed fixed broadband, asks whether that should be the case, and asks whether it should set a benchmark for mobile broadband. It also asks whether 4K Ultra HD is relevant to its current speed benchmark--video is a major consumer of bandwidth.

The NOI also asks whether the FcC should add latency and "service consistency" to the definition of the advanced telecommunications that is, or isn't, being provided on a timely basis to all Americans.

The FCC wants to know what criteria it should be using to determine whether fixed and mobile are delivering on advanced telecom and what new data sources, if any, it needs to mine.

The FCC's definition of that advanced telecom is “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 using any technology.”

The NOI suggests the FCC wants to take an expansive view of what meets the Sec. 706 definition.

FCC Chairman Tom Wheeler said back in January of the findings of the 2016 report that consumers need access to both fixed and mobile and that when it comes to the former "34 million Americans still lack access to fixed high-speed broadband.

He said that was particularly the case with rural Americans and tribal lands, which he said are being disproportionately left behind at roughly 40% compared to 4% without access in urban areas, adding: "That's not good enough."

Wheeler said that the fixed high-speed definition of 25 Mbps download/3 Mbps upload will remain the standard but there needed to be discussion about what the mobile standard should be. He said he hoped the report would also prompt a discussion on how to improve that deployment.  

The National Cable & Telecommunications Association flatly disputes the 2016 finding. When that latest report was released in January, the National Cable & Telecommunications Association expressed its frustration with not getting credit from the FCC for its broadband buildouts. “The reality is that progress in deploying broadband in America has been reasonable and timely," NCTA said.

Commissioner Ajit Pai voted for issuing the NOI, but only concurred in its substance, which is short of opposing but less than full-throated approval. He has been highly critical of the FCC continuing to conclude buildouts are not reasonable and timely, saying that is so it can continue to flex its regulatory muscle over broadband.

"[A]s in previous years, this proceeding promises to play out like a 1970s television show: a predictable script that meets a preordained goal. There will, of course, be some drama. Will the Commission adopt a definitive benchmark for mobile broadband? Will the Commission add latency, jitter, or packet loss to the definition of broadband? Will the Commission acknowledge that the Universal Service Fund is spending billions of dollars to build out services that don’t qualify as broadband?  But everyone knows the denouement: Early next year, the FCC will find that broadband is not being deployed “in a reasonable and timely fashion.” 

He called that a "sham" and a "shame."

Commissioner Michael O'Rielly echoed Pai's suggestion the next report's finding were a foregone conclusion. He also took issue with the FCC seeking input on factoring privacy, security, adoption, and pricing into the advanced telecommunications definition, as well as asking about the impact of data allowances.

"[T]he item suggests, as many of us anticipated at the time, that the Charter Communications-Time Warner-Advance/Newhouse “findings” will now be used as precedent for other actions. In this case, data allowances are examined – without the presentation of any counter arguments – as a means to “affect the availability of advanced

telecommunications capability,” he said. "While data caps/allowances may or may not affect consumer take rates, that is a far different issue than whether Internet access is being deployed to all Americans."

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