I Respectfully Dissent

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The following is FCC commissioner Robert McDowell’s dissent
from the Federal Communications Commission’s Seventh
Broadband Progress Report (for more, see Rules).

I am both optimistic and pragmatic

about the state of broadband deployment.
We continue to take great strides to provide faster
and better broadband to more Americans every
year. Capital investment in fixed and mobile
broadband deployment continues to be a tremendous
success story. The report’s only metric
that permits year-to-year comparison finds
that the percentage of U.S. households served by
terrestrial broadband grew from 92% in December
2008 to 96% in June 2010. In the same period,
the number of unserved households dropped
almost in half from 8.8 million to 4.6 million.

Section 706 of the Telecommunications Act
of 1996 requires the commission to determine
whether “advanced telecommunications capability is being
deployed to all Americans in a reasonable and timely fashion.”
In all of the reports starting with the first in 1999, the
FCC has answered “yes” to that question. Last year, however,
the commission dramatically reversed course.

Last year’s negative conclusion was unsettling, considering
that America had made impressive improvements in
developing and deploying broadband infrastructure and
services. In just six years, broadband deployment skyrocketed
from reaching only 15 percent of Americans in 2003,
to 95 percent by the end of 2009. I cast a dissenting vote.

This year’s report continues with the same flawed analyses
and conclusions, albeit with a novel rationale, which is
discussed below. As a result, I respectfully dissent again.
Th is year’s report makes a surprising leap by arguing that
Congress did not mean “physical” deployment when referring
to “deployment” and “availability.” It concedes that the
Act does not define the terms “deployment” and “availability.”
Instead of looking to the plain statutory language to
determine Congress’ intent, however, the commission relies
on legislative report language to argue that
even if broadband is physically deployed to a
particular area but is not affordable, it is not
considered available under Section 706. But,
the actual statutory language says otherwise,
stating that as part of the inquiry, the commission
should look at demographic information
for “geographical areas that are not served by
any provider of advanced telecommunications

Regrettably, through this attempted reinterpretation
of Section 706(b), the commission
appears to continue a trend towards more
regulation and ever increasing authority over
broadband and the Internet. The report references
barriers to infrastructure investment that include
“poor digital literacy,” “low broadband service quality,”
“affordability,” and “lack of access to computers.” It is unclear
from this report if this commission now contends it
has authority under Section 706(b) to establish regulation
to address each of these “barriers,” many of which bear little
nexus to infrastructure deployment.