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Round-Up for the Week of May 4-8, 2020

In October 2019, the Federal Communications Commission released a Notice of Inquiry (NOI), launching its annual review to determine if broadband is reaching all Americans in a timely fashion. Back then, we examined the questions the FCC was asking and how they might color its decision. On April 24, the FCC released its 2020 broadband deployment report. Spoiler alert: the FCC majority found for the third consecutive year that broadband is being deployed on a reasonable and timely basis. But past this headline-grabbing conclusion, what else did the FCC find?

Perhaps most importantly during the COVID-19 pandemic, the FCC found that at least 18 million people in the U.S. do not have access to 25/3 Mbps broadband service at any price. These people can't work from home, can't continue their education while schools and university campuses are closed, and can't use telehealth services to avoid doctor's offices and hospital visits. 

I. "Is Being" Different Than "Been Deployed"

Under Republican leadership, the FCC has interpreted its Congressional mandate to "holistically evaluate progress in the deployment" of broadband and "whether that progress is occurring in a reasonable and timely fashion." [We'll return to what counts as "holistic" later.] As the FCC first determined in its 2018 broadband deployment report:

This "progress-based approach" seemingly allows the FCC to find both that at least 18 million people in the United States do not have access to broadband -- and that broadband is being deployed to all Americans in a reasonable and timely fashion.

The FCC noted a great deal of industry support for this approach including from ACA Connects (small cable providers); ADTRAN, Inc. (a networking and communications equipment provider); CTIA (the wireless industry); Fiber Broadband Association; ITTA (the now-defunct representative of independent telecommunications companies); NCTA (which represents large cable companies); USTelecom (representing large telecommunications companies); Wireless Internet Service Providers Association (WISPA); and the Utilities Technology Council.

If the FCC had found that broadband is not being deployed to all Americans in a reasonable and timely fashion, the law requires the Commission to promote competition in the telecommunications market, something incumbent broadband providers may want to avoid.

II. Wireless vs Wired

In previous broadband deployment reports, the FCC concluded that both fixed and mobile LTE services provide capabilities that satisfy the statutory definition of broadband. But the Commission also says there was insufficient evidence in the record to conclude that fixed and mobile broadband services are full substitutes in all cases. 

In the 2020 report, the FCC again finds that both fixed and mobile services are capable of meeting the definition of broadband and that this is consistent with the language of the law that defines broadband “without regard to any transmission media or technology.” Moreover, the FCC finds that the record provides some evidence that consumers increasingly rely on mobile broadband for accessing and sharing information, and they can substitute fixed and mobile broadband when accessing certain services and applications (think e-mail and social media). And mobile wireless providers also continue to offer new retail data plans that make mobile service an increasingly-attractive alternative to fixed services.(2)

But the FCC also noted that fixed and mobile services often continue to be used in distinct ways, and that users tend to subscribe to both services concurrently and treat them as complements. So the FCC concludes that while users may substitute between mobile and fixed broadband when accessing certain services and applications, they are not yet functional substitutes for all uses and customer groups.

FCC Commissioner Michael O'Rielly disagreed with the conclusion saying:

Is Commissioner O'Rielly unaware that the vast majority of wireless internet traffic runs over Wi-Fi, not cellular data, networks? Even for customers with unlimited data plans, 70% of their wireless data runs over a Wi-Fi network. 

The FCC points to a 2019 Pew Research Center survey on mobile technology and home broadband adoption. The research finds that just over 12% of adults surveyed do not have broadband at home because their smartphone lets them do everything they need to do online. But the Commission might take note that the top reason for not having home broadband service remains high costs.

In any case, the FCC will continue to examine the deployment of fixed and mobile wireless services, both individually and in conjunction with one another.

III. 25/3 Is Still "Advanced"

Back in 2010, the FCC set 4 Mbps upload and 1 Mbps download as the minimum speeds to qualify service as broadband. In 2015, the FCC -- reflecting advances in technology, market offerings by broadband providers, and consumer demand -- updated its broadband benchmark speeds to 25 megabits per second (Mbps) for downloads and 3 Mbps for uploads. And there the standard has sat since. 

In the 2020 broadband deployment report, the FCC again found that 25/3 service qualifies as broadband because, per the "functional definition" of broadband mandated by Congress, it "enables users to originate and receive high-quality voice, data, graphics, and video telecommunications." Again, the record reflects industry support for the current standard including from ACA, ADTRAN, ITTA, NCTA, USTelecom, and WISPA. In fact, the FCC agrees with USTelecom and WISPA saying that since 2015, “the speed required for the applications that most broadband consumers use has not changed substantially . . . and actual subscriptions have not yet consistently surpassed the benchmark level.” Besides, the FCC notes, “the majority of households consist of only one or two people”, and 25/3 is good enough for them. But the Commission did not comment on the speed’s functionality for U.S. families, who, during the pandemic, likely have simultaneous users learning and working online.  

Despite an “increased appetite” for bandwidth from devices and applications, the FCC concluded that the Congressional definition of broadband does not suggest that the benchmark necessarily means the highest quality service possible. The FCC agrees with NCTA that “adopting a ‘forward-looking’ or ‘aspirational’ definition, as some recommend, distorts the purpose of the analysis Congress has required the Commission to perform and may prove to be counter-productive in terms of new investment.”

But the marketplace has moved past 25/3. The research firm Kagan found more than 3 out of 5 households in America subscribe to broadband with download speeds of at least 100 Mbps. And, by the report's own adoption data for 2018, 45.7% of all U.S. homes subscribed to 100/10 service -- and, of all U.S. households that subscribe to broadband, more than 70% chose 100/10 Mbps or faster service. Rural adopters chose 100+ at an even higher rate.

On the mobile side, the FCC believes a single benchmark is unreliable in the mobile wireless context due to the inherent variability in the performance characteristics of mobile service both geographically and temporally. Instead, the FCC uses two benchmarks: 5/1 Mbps and 10/3 Mbps. Going forward the FCC will collect 5G deployment data. 

Returning to the FCC's Congressional mandate to "holistically evaluate progress in the deployment" of broadband, the FCC again declined to adopt benchmarks, for either fixed or mobile broadband services, on affordability, data allowances, or latency because “[w]hile factors such as data allowances or pricing may affect consumers’ use of [broadband] or influence decisions concerning the purchase of these services in the first instance, such considerations do not affect the underlying determination of whether [broadband] has been deployed and made available to customers in a given area.”

So you may continue to only have an option for expensive broadband, or service with low data caps, or a service that delays or freezes your videoconferencing, but because that service passes your home, you have access, the FCC concludes.

IV. Flawed Data is Still the Best Data

For its determination of whether broadband is being deployed to all Americans in a timely fashion, the FCC continues to rely on its own deployment data to evaluate consumers’ broadband options for fixed terrestrial and mobile services. The FCC, ADTRAN, NCTA, USTelecom, and WISPA agree that the FCC data “remains the most comprehensive data” available. But how reliable is the data? Well ...

• The FCC collects the data from broadband providers who self-report without an independent audit.
• The FCC requires fixed broadband providers to identify the census blocks in which their service is available. If one provider does—or could within a typical service interval or without an extraordinary commitment of resources—provide service to a single end user in a given census block, the entire block is considered served.
• In a 2018 report, the Government Accountability Office (GAO) found that the FCC’s fixed broadband availability methodology overestimates broadband deployment by ‘‘counting an entire census block as served if only one location has broadband.’’ GAO also found the FCC data overstated deployment by ‘‘allowing providers to report availability in blocks where they do not have any infrastructure connecting homes to their networks if the providers determine they could offer service to at least one household.’’ 
• In 2019, USTelecom mapping projects in Missouri and Virginia found that as many as 38% of rural households were mischaracterized as served.
• In an effort to collect and develop better quality, more useful, and more granular broadband deployment data, the FCC itself has initiated, but not implemented, reforms to its data collection.
• The FCC notes, in this proceeding, that some providers have revised their data since the 2019 Report.
• For this report, the FCC excluded deployment data for one service provider due to ongoing concerns about the reliability of the filer’s data.
• Just last month, AT&T admitted that it falsely reported that it offers broadband in nearly 3,600 census blocks spread across parts of 20 states.
• A majority of FCC commissioners -- in their statements about this report -- note how the data is not accurate. Commissioner Jessica Rosenworcel noted that other studies found the true number of people without broadband access to be somewhere between 42 million and 162 million.
• The FCC itself, in this report, acknowledges that the data collection is imperfect.
• And, perhaps, most importantly, in March 2020, Congress -- with strong, bipartisan consensus -- mandated that the FCC reform its broadband data collection.

But this proceeding, the FCC said, "is not the appropriate vehicle for the Commission to make changes to the data collection." 

But is it appropriate for the FCC to rely on unreliable data that overstates the deployment of fixed and mobile services to come to the conclusion that the deployment is reaching all Americans in a timely fashion? The FCC argues that because it relied on the same flawed data for previous reports, relying on equally flawed data now is effective.

V. Tribal Lands Left Behind

At least 32% of Americans living on Tribal lands lack access to high-speed internet at home and the 2020 broadband deployment report recognizes that Tribal lands continue to face significant obstacles to broadband deployment. The FCC also recognizes the need to promote and encourage the availability of broadband on Tribal lands as many of these lands are located disproportionately in rural areas, which tend to be less densely populated than rural non-Tribal areas. Further, the remote, isolated nature of these areas, combined with challenging terrain and lower incomes, increases the cost of network deployment and entry, thereby reducing the profitability of providing service. 

The FCC agrees with the Benton Institute filing explaining that “[t]he challenge of deploying broadband to tribal lands is exacerbated by poverty and low population density as well as tough terrain that increases construction and operating costs;” and “on Navajo lands in the Southwest, many people live in buildings, like converted tool sheds and traditional Navajo hogans, that the federal government does not recognize as dwelling units.”

These findings don't support the FCC's conclusions about broadband deployment to all Americans. Instead, the FCC said, "more work is needed to spur broadband deployment in these areas." The FCC suggests only that it will "collect, monitor, and analyze any relevant data on Tribal lands."

VI. What is the FCC Doing to Close the Digital Divide?

The FCC sought comments on the ongoing effects of its efforts in spurring broadband deployment, as well as any additional efforts it might undertake. The Commission asked: Has the FCC been effective in its efforts to increase deployment by targeting USF funding to unserved areas in order to extend the reach of networks to all Americans? What more could or should we do to expand access to spectrum to support or supplement wireless and satellite broadband services?

In the 2020 report, the FCC says it is accelerating broadband deployment and closing the digital divide by removing barriers to wireline and wireless investment, modernizing its universal service programs, and making more spectrum available for the commercial marketplace. The FCC lists many actions it says it is taking to encourage deployment of fixed and wireless broadband. "Both commenters and industry reports indicate that our policy efforts are making a difference," the FCC states, pointing to a Fiber Broadband Association press release and comments from the Internet Innovation Alliance and the defunct ITTA. "Our policymaking efforts over the last few years are promoting broadband deployment," the FCC concludes with an acknowledgment of its flawed data, "and we are confident that even a perfectly designed and implemented data collection, if such a thing were possible, would still show that ISPs are making strong progress in deploying advanced telecommunications capability to more and more Americans." Moreover, the FCC says, "there is no documented evidence in the record suggesting that the progress in deployment shown in the data is a function of data deficiencies." (Of course, other than the GAO findings that the FCC overstates broadband deployment.)

VII. State of the Union for the Digital Divide

Both FCC Commissioners Jessica Rosenworcel and Geoffrey Starks dissented from the report. Rosenworcel called it "baffling": "So much of modern life has migrated online. As a result, it has become painfully clear there are too many people in the United States who lack access to broadband. In fact, if this crisis has revealed anything, it is the hard truth that the digital divide is very real and very big. But you’ll find no evidence acknowledging that in today’s Broadband Progress Report." She said the report "ignores the lived experiences of so many people struggling to get access to the broadband in [their] need right now for work, education, healthcare, and more. On top of this, the agency’s methods for concluding that broadband deployment is reasonable are seriously flawed."

Commissioner Starks, who calls the annual broadband deployment report the “State of the Union” for the digital divide, said "it is especially perplexing and disturbing that the majority would cast this report as a victory lap. When public health requires social distancing and even quarantine, closing the digital divide becomes central to our safety and economic security. But too many Americans cannot access online work, medical help, and distance learning because broadband is too expensive or not available."

Commissioner Rosenworcel concludes:

Quick Bits

• Senator Markey Introduces Legislation Requiring National Broadband Plan Update in Light of Coronavirus Pandemic (US Senate)
• Virtual School Leaves Kids Behind, Sparking New Broadband Push (Bloomberg)
• Only 25% of Census Blocks Have Competition for 100 Mbps Broadband​ (telecompetitor)
• The coronavirus pandemic is breaking the internet (The Hill)
• Sinclair Agrees to Pay $48 Million Civil Penalty; FCC Penalty Will Be Largest Ever Paid by a Broadcaster (FCC)

Weekend Reads (resist tl;dr)

• Democrats Said Pushing for $1 Billion or More in Broadband Subsidies (Bloomberg)
• Why rural Americans are having a hard time working from home (CNN)
• Parking Lots Have Become a Digital Lifeline (New York Times)
• How Local Providers Built the Nation's Best Internet Access in Rural North Dakota (Institute for Local Self-Reliance)
• Digital Equity in Education in the Coronavirus Era (Kids First Chicago, Metropolitan Planning Council)

ICYMI from Benton

• America’s Broadband Moment: Making Broadband Affordable (Jonathan Sallet)
• While More Americans Rely on Parking Lot Wi-Fi, Many Public Libraries Do Not Have Adequate Broadband (Colin Rhinesmith, Jo Dutilloy, Susan Kennedy)
• America at the Crossroads (Michael Copps)
• Where's the Lifeline? (Kevin Taglang)

Upcoming Events

May 12: Fighting the Virus Online: How tech platforms are helping to fight the spread of COVID-19 (NetChoice)

May 13 The State of Broadband Amid the COVID-19 Pandemic (Senate Commerce Committee)

May 13 Open Meeting (Federal Communications Commission)

May 13 Developing Broadband Leadership Webinar Series Part 1: Broadband – Now More than Ever (Illinois Department of Commerce and Economic Opportunity Illinois Office of Broadband)

May 13 COVID-19 and the US Democratic Process (NetGain Partnership)

Notes:

1. 2018 Report, 33 FCC Rcd at 1663, para. 11; see also 2019 Report, 34 FCC Rcd at 3859-60, para. 8 (finding that use of a progress-based approach enables the Commission to conduct the section 706 inquiry in the manner the statute requires).
2. The FCC offers the following examples: Verizon Wireless, Single Connected Home Plans, https://www.verizonwireless.com/plans/single-deviceplan/. AT&T has a mobile service that it optimizes for high-definition video streaming and offers 30GB mobile hotspot to connect other devices. AT&T Unlimited Elite, https://www.att.com/plans/unlimited-dataplans/; see also, Xfinity Mobile Plan Details, https://www.xfinity.com/mobile/plan/details (offering Xfinity Mobile customers up to five lines for phones, watches, or tablets, mix and match data options, and the ability to access LTE networks and any of Xfinity’s WiFi hotspots).

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

© Benton Institute for Broadband & Society 2020. Redistribution of this email publication - both internally and externally - is encouraged if it includes this copyright statement.

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