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Net neutrality implications of broadband report leave FCC divided on deployment

The Federal Communications Commission's annual broadband deployment report is meant to inform Congress about the availability of broadband in the U.S. But because the report has implications for the net neutrality debate, partisan bickering over its findings make it hard for clear conclusions to be drawn.

In its "2018 Broadband Deployment Report," the FCC found that as of year-end 2016, 92.3% of all Americans have access to fixed terrestrial broadband at speeds of 25 Mbps/3 Mbps, up from 89.4% in 2014 and 81.2% in 2012. It concluded that advanced telecommunications capability, or broadband with download speeds of at least 25 Mbps and upload speeds of at least 3 Mbps, is "being deployed to all Americans in a reasonable and timely fashion."

It has been 10 years since an FCC report issued an affirmative finding on broadband deployment. Instead, all the reports issued under Democratic leadership argued tens of millions of Americans continue to lack access to high-speed internet service, and therefore broadband was not being deployed quickly enough. Now, though, under Republican FCC Chairman Ajit Pai, the commission ruled in its latest report that "reasonable and timely" deployment under the law does not require 100% of the population be served. Whereas past commissions focused on the number of people still unserved, Pai focuses on the progress that has been made in increasing access.

Pai, in his comments, pointed to the overturning of the 2015 Open Internet Order as an example of the FCC removing a major barrier to deployment, with the report stating, "The marketplace is already responding to the more deployment-friendly regulatory environment now in place." The 2015 order was overturned by Pai's commission in December 2017 and the net neutrality rules were eliminated.

Democratic Commissioner Mignon Clyburn, however, noted the report reflects deployment as of year-end 2016 and so any comments about deployment increasing in the wake of 2017 actions are "hypothetical."

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Commissioner Jessica Rosenworcel, a Democrat, said that based on these numbers, the commission cannot and should not be satisfied. "Today there are 24 million Americans without access to broadband," she said, noting this figure includes 19 million Americans in rural areas and 12 million school-aged children. "To call these numbers a testament to our national success is insulting and not credible," Rosenworcel said.

She added that while progress has certainly been made over the past several years, "It is premature for this agency to declare mission accomplished."

Republican Commissioner Michael O'Rielly said he supported the commission's affirmative finding of "reasonable and timely" deployment, noting that the FCC's efforts to expand broadband access will not stop as a result. Moreover, he noted that when satellite-delivered service is included, the number of Americans without access to 25 Mbps/3 Mbps internet drops to 14 million, further supporting an affirmative finding.

Clyburn, on the other hand, said the inclusion of satellite service "has been recognized by previous reports as likely to overstate deployment to a significant degree."

Another point of contention for the commission was whether wireless broadband should be treated as a substitute for wireline service. According to the 2018 report, when satellite service, wireline and wireless are all taken into account, only 470,000 Americans lack access to either fixed 25 Mbps/3 Mbps service or 5 Mbps/1 Mbps mobile LTE. Overall, approximately 99.9% of Americans have access to one of these services, including 99.3% in rural areas.

O'Rielly reiterated his belief that wireless is a substitute for wireline, but Pai said the report found "differences between the two technologies, including clear variations in consumer preferences and demands."

The question of whether mobile should be considered a substitute and which consumers are already adequately "served" in terms of broadband service is especially important as Congress and the FCC increasingly push to target federal dollars toward deployment in unserved areas. In particular, Rep. Leonard Lance, R-N.J., introduced a resolution in the U.S. House of Representatives expressing the sense that no federal funds should be used to construct broadband facilities in areas where there is an existing broadband provider meeting certain minimum standards. The resolution was one of 25 pieces of legislation recently considered during a House Subcommittee on Communications and Technology hearing.

The broadband deployment report is required under Section 706 of the Telecommunications Act, which states the FCC must "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans." When the FCC in 2015, under the Democratic leadership of former FCC Chairman Tom Wheeler, adopted the Open Internet Order to impose net neutrality rules, the commission cited Section 706 as one of the two main sources of legal authority.

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