FCC Expected to Raise Broadband Speed Benchmark
Expected FCC approval Thursday of a higher speed standard for broadband was portrayed by cable and telco ISPs as a power grab. But public interest groups were hailing the likely passage of the 25 Mbps download/3 Mbps upload standard as an attempt to more accurately reflect expectations around broadband speeds that could also push the cable industry to reach the 100 Mbps download speeds envisioned in the FCC National Broadband Plan. The vote, approving the higher standard along with the issuance of a notice of inquiry on how to promote broadband deployment, is widely expected to be along party lines.
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To opponents, upping the standard from 4 Mbps download/1 Mbps upload is an attempt by the agency to not weaken its Communications Act Section 706 authority as speeds increase. The higher standards make it a “virtual certainty” that broadband will be deemed as not being deployed in a reasonable and timely fashion, NCTA said in a blog post Tuesday, opposing the higher standard. That would aid the agency in “expanding its own power,” NCTA said, “but it’s hard to see how this decision is helpful in accurately evaluating how most Americans use the Internet today. An increase in the threshold speed for what’s considered broadband could also affect the review of Comcast's planned buy of Time Warner Cable (see 1501280055).
TechFreedom President Berin Szoka predicted again (see 1501230046) that the higher standard would be used to help justify reclassifying broadband and pre-empting state anti-municipal broadband laws in orders expected in February. “The worse the FCC claims the broadband deployment situation is, the more aggressively it will say it needs to be in using Section 706,” Szoka emailed us. On net neutrality, he predicted FCC Chairman Tom Wheeler will use Section 706 authority to expand consumer privacy protections. The FCC could also use an economic argument to justify reclassification by saying that, based on the higher standards, broadband is effectively a monopoly, Szoka said.
Opponents also said the agency is using a speed standard higher than needed to reflect customers’ needs, in order to retain its authority. The agency wouldn't comment Wednesday. A fact sheet the agency released last month said the current “dated” standard was set four years ago.
The current standard is “inadequate for evaluating whether broadband capable of supporting today’s high-quality voice, data, graphics, and video is being deployed to all Americans in a timely way,” the fact sheet said. The draft report says 53 percent of rural Americans lack access to broadband at 25/3 Mbps speeds, and 17 percent, or about 55 million people nationally, lack access to these speeds. Under those standards, the fact sheet said, “broadband is not being deployed to all Americans in a reasonable and timely fashion, especially in rural areas, on Tribal lands, and in U.S. Territories.”
Courts and the commission have said Section 706 requires the agency in the broadband report to assess “current, regular uses of broadband,” NCTA said. Arguments by Netflix and Public Knowledge to raise the standard are based on applications that go “well beyond” current and regular uses, the association said. Netflix said the 25 Mbps download standard is needed to stream “4K and ultra-HD video content -- despite the fact that only a tiny fraction of consumers use their broadband connections in this manner,” NCTA said. The commission has said a “relatively small percentage” of consumers choose to buy 25/3 Mbps speeds when it's available, and raising the benchmark “would improperly substitute the speculative judgment of the Commission for the actual, demonstrated preferences of consumers in the marketplace,” NCTA said. Netflix wouldn't comment.
Under the current 4 Mbps/1 Mbps standard, consumers are still able to “access virtually all content on the Internet,” Verizon said in a comment, making it a more relevant measure than “whether consumers have access to high-end speed tiers that few actually use.” The proposed increase “is not based on a reasonable analysis of how customer’s [sic] actually use broadband services,” AT&T said in a comment.
The National Broadband Plan set a goal for 100 million, or one-third of the nation’s population, having download speeds of at least 100 Mbps by 2020 – “six years from now,” emailed Public Knowledge Senior Vice President Harold Feld, an advocate of the higher standards. “The proposed speed increase is one-quarter of what we need to meet our goal. … I get that math is apparently not a strong suit for cable operators, but with half the time elapsed we should be able to define broadband as one-quarter of the speed we need to hit our national goal.” Carriers “have collectively preferred to sit on their lazy rumps and claim that whatever speed they are providing at the moment is the totally awesome perfect speed and the FCC should grade on a curve that gives the broadband industry an ‘A’ for showing up," Feld said. The higher benchmark, however, could expand availability of 25/3 Mbps broadband, he said, because it would allow the use of USF funds in areas that would be considered underserved at those speeds.