McDowell, Pai Dispute Findings in Key Broadband Report

The fireworks are just starting. The FCC is also expected to release as early as Wednesday an interim change for the commission’s special access rules, agency officials said Tuesday. It’s also opposed by the Republican commissioners (CD Aug 14 p1).

"The efforts to bring broadband to all Americans are significant, and wireless and wireline broadband providers have made great progress,” the report said (http://xrl.us/bnmowi). “These providers invest tens of billions of dollars annually in the networks that make broadband possible, and since the 1996 [Telecom] Act, they are reported to have invested more than $1 trillion dollars combined.” The investments by carriers have been “complemented by the efforts of the Commission, and other federal, state, and local actors, to expand broadband access,” particularly last year’s USF reform order, the report said.

The report contains maps, tables and dozens of data sets on the state of broadband deployment across the U.S. FCC Chairman Julius Genachowski called it “the most accurate and comprehensive Report since its inception,” showing both progress and problems. The FCC also released a notice of inquiry Tuesday asking a battery if questions for the FCC’s next Section 706 report (http://xrl.us/bnmozh).

"The data in this report paint the clearest picture yet about the progress we have made on broadband -- and the urgent challenges that remain,” Genachowski said. “The Report’s conclusions only reaffirm what I hear all too often from small business owners, parents, educators and others across the country -- we can’t let up on our efforts to unleash the benefits of broadband for every American. Increasing broadband deployment, increasing adoption, increasing speeds and capacity are vital throughout our country; they're essential to growing our innovation economy and driving our global competitiveness.” The data shows that “a significant broadband adoption gap remains” and “fewer than 70 percent of Americans have subscribed to fixed broadband, even counting speeds as low as 768 kbps,” Genachowski said. “We have to continue striking at the barriers that are keeping Americans offline."

As has been the case in the previous 706 reports under Genachowski, Republican commissioners dissented. McDowell said broadband was available to only 15 percent of Americans in 2003, compared to 95 percent six years later. “It is discouraging that ... the majority has decided to clutch to its earlier negative findings as to whether ‘advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion’ pursuant to Section 706 of the Telecommunications Act,” McDowell said. “In reality, the growth of broadband deployment in America, especially regarding the mobile marketplace, has been swift and strong.” Mobile competition is also stronger in the U.S. than in most of the world, which is ignored by the report, he said.

The majority misinterprets language in the Telecom Act to find that even if broadband is available in a market, if it’s not affordable “it is not available under Section 706,” McDowell said. “The report identifies low broadband service quality, affordability of broadband, lack of access to computers, lack of relevance, and poor digital literacy as some of the barriers to infrastructure investment. These are really adoption issues, not deployment issues. And, by identifying these ‘barriers,’ the majority has continued to use Section 706 as a tool for mission creep.”

Pai weighed in on a Section 706 report for the first time, saying he shared the concerns of McDowell and former Commissioner Meredith Baker. “The Commission has consistently ignored in recent years the statute’s direction that ‘advanced telecommunications capability’ may be deployed ‘using any technology,'” Pai wrote. “That instruction does not permit us to segregate fixed connections from mobile connections, focusing on the former and neglecting the latter.” If the FCC had looked at all broadband, the report would have concluded that 5.5 million Americans, not 19 million, “lack access to advanced telecommunications capability,” he said.

Pai also questioned how the report has been used by the FCC under Genachowski. “In recent years, the Commission has relied on an expansive reading of section 706(b) that purports to grant us heretofore unknown and unspecified authorities to carry out the public interest so long as doing so tangentially relates to broadband,” he said. “But our authority under this provision only lasts so long as our section 706 determination is negative.” If the FCC wants to set an objective it will never reach, “then I suppose that this is not a problem,” he said. “But if we believe instead that data should drive our decisions -- not vice versa -- then section 706(b) can never be a reliable authority for implementing good policy since we will eventually be forced to concede once again that broadband is not being deployed in a timely and reasonable fashion."

Commissioners Mignon Clyburn and Jessica Rosenworcel voted to approve the report. “It is clear from today’s Report that we are not ready to declare victory just yet, as approximately 19 million Americans still lack access to terrestrial fixed broadband services that meet our broadband definition, and the adoption gap still shows that about 1/3rd of Americans do not subscribe to broadband,” Clyburn said. “Broadband service has not been made available to all Americans in a reasonable and timely fashion. Moreover, for low-income consumers and residents of rural areas, Tribal Lands, and the Territories, this finding is even more acute.”

USTelecom released a statement echoing concerns raised by the two Republicans. “While we appreciate the Commission’s acknowledgement that ‘huge strides’ have been made, we think that today’s report undervalues the extraordinary scope of broadband deployment that has been achieved and understates the significance of private sector investment,” said President Walter McCormick. “Certainly the conclusion that broadband deployment to rural areas remains neither timely nor reasonable suggests that the FCC would be well-served by acting expeditiously on concerns expressed by the broadband companies that are seeking to serve rural America."

"The FCC’s Chairman, Julius Genachowski, may claim the FCC’s action in releasing the Broadband Deployment report is data-driven,” said Free State Foundation President Randolph May. “But it is rather clear that the report’s bottom-line determination that broadband is not being deployed on a ‘reasonable and timely’ basis is philosophy-driven."

But Free Press and Public Knowledge supported the report’s findings. “Congress intended for everyone to have access to true broadband services that are robust enough for users to originate and receive high-quality voice and video services,” said Free Press Research Director Derek Turner. “We agree with the FCC’s finding, and we urge the agency to use all the tools at its disposal to ensure everyone has access to the kind of competitive, robust broadband services Congress envisioned.”