Boosting What FCC Deems Broadband Would Have Practical Pitfalls, ISP Officials Say

Should the FCC move to hike the threshold for what it considers broadband speeds, practical issues could range from what services now considered broadband would be called under the new threshold, and how to account for changes in the portion of U.S. residents considered covered by such service, said an ISP executive. A host of other practical issues may be raised, if the next Section 706 report measures broadband as only that which is 250 percent or more faster than what’s now considered such, said the industry executive. Using 4 Mbps downstream and 1 Mbps up as minimums, 19 million people live in areas without terrestrial-fixed broadband of that speed or faster, said the last Section 706 report, issued in August 2012 (http://bit.ly/1o5ZKvM). What the draft NOI asks about doesn’t seem to involve raising the current 1 Mbps upload threshold to constitute broadband, said commission officials now.

The commission in the 2010 Section 706 report raised the speed from 200 kbps in both directions to 4/1 Mbps, noted the last broadband deployment NOI. In 2013, the FCC skipped a year of issuing the report that Congress requires each year, when the draft circulated by then-Acting Chairwoman Mignon Clyburn wasn’t voted on, said agency officials. They said Wheeler pulled the draft report around the time he pulled other items, including a quadrennial media ownership review draft (CD Dec 16 p1). While commission officials said it’s unknown why Wheeler pulled the draft report, the new NOI would restart the process for eventually writing a report, said agency officials.

The NOI also raises issues that could affect net neutrality and USF, based on a January ruling by the U.S. Court of Appeals for the D.C. Circuit throwing out net neutrality rules and last month’s 10th Circuit ruling upholding using USF to pay for broadband, said agency and industry officials. The FCC gets authority over some areas related to broadband by finding broadband isn’t being deployed to all Americans in a “reasonable and timely fashion,” said agency and industry officials. Past reports under Wheeler’s Democratic predecessor Julius Genachowski found deployment wasn’t happening in that fashion, and so future findings along those lines could be read to bolster FCC authority to take certain net neutrality and USF actions, said a commission official.

Broadband Stats

Under the 10 Mbps download threshold, much cable and telco Internet service as of Dec. 31, 2012, wouldn’t be considered broadband. That’s the most recent period for which the FCC released such information covering all ISPs as part of its census (http://fcc.us/Sr4fF9). But speeds have been increasing. As of Dec. 31, 2012, about 20 percent of cable modem customers, or 10.7 million, didn’t get download speeds above 10 Mbps. For those using the most popular type of DSL, asynchronous, about 90 percent, or 27.7 million, didn’t get such speeds. DSL is often sold by telcos. But most fiber to the premises service, which telcos have been expanding, did meet the 10 Mbps threshold.

Some outside organizations that measure broadband availability don’t measure speed, so more recent figures aren’t available, said officials from such groups. The Pew Research Center doesn’t count speeds because survey respondents have a hard time figuring out what they're buying and getting, said Aaron Smith, a Pew senior researcher. “People just don’t really have the ability to tell us with any real degree of precision what kind of speed they're getting and what kind of service they have,” beyond vagaries, he said. “If you say you have Internet access in your home and you don’t have dial up, we basically consider you a broadband user.” About 70 percent of U.S. adults had home broadband as of September, the last date for which Pew collected it, said Smith.

Download speeds aren’t merely an “aspirational number,” said Gig.U Executive Director Blair Levin, who ran the FCC National Broadband Plan that recommended the agency periodically review its measurement thresholds. Some criticized the NBP for having a number too low -- he said it was 4/1 -- and Levin recalled that he'd respond to them, “'OK, how much would it cost” to increase the thresholds. “The most important thing about the plan is it was not set in cement,” and the FCC should update it, said Levin.

The Section 706 report NOI also asks about raising thresholds beyond 10 Mbps, to 15 or 25 Mbps, said FCC officials. The commission doesn’t seem headed in that direction, because there’s not much justification in the draft for using such thresholds, said an agency official. The August 2012 NOI, released at the same time as the Section 706 report, also asked about upping the thresholds (http://bit.ly/1nLYxw3). It noted that HD video can require 5-12 Mbps downstream.

Difficult if Minimum Raised

The new draft NOI asks whether the FCC should measure U.S. progress toward the NBP’s goal of 100 Mbps downstream to 100 million homes by 2020, said an agency official. The NOI for the since-abandoned earlier report had also asked such a question.

Increasing the minimum threshold from 4 Mbps downloads that can be considered broadband could be bad for companies that offer DSL connections, said Mediacom Vice President-Legal Affairs Tom Larsen. Those may offer speeds beneath the broadband threshold, and changing that threshold may reclassify the areas they cover as underserved, opening those area up for expansion by companies that provide government-subsidized broadband infrastructure, Larsen said. That’s not a threat to cable companies like Mediacom because they offer speeds well above the likely new thresholds, he said.

Increasing the threshold could threaten ISPs in the realm of net neutrality, said Davis Wright cable attorney Paul Glist. “If you increase the minimum level of speed that counts as broadband, you can always extend the horizons” of what is considered adequate broadband deployment, he said. That would let the FCC “always have a regulatory hook” to retain Section 706 jurisdiction, Glist said. It’s also a way for the FCC to control the negotiations between companies to provide faster speeds to companies that pay for it, by setting a floor for what’s “reasonable” under net neutrality rules, he said.

Commissioners Ajit Pai and Mike O'Rielly may see the draft NOI as a trick to impose net neutrality, and they may oppose it, said a cable attorney. But agency officials said commissioners don’t usually oppose NOIs, only final reports. Pai and then-Commissioner Robert McDowell voted against the last report (CD Aug 22/12 p1). If FCC Republicans again dissent, the commission would split along party lines, said the cable lawyer. Larsen said the outcome is less clear: Since Pai and Clyburn come from areas with a lot of rural Internet customers, they may be more sensitive to what changing the threshold is likely to mean for those subscribers. (jmake@warren-news.com),