Claiming that, over the past five years, the FCC “has applied inconsistent definitions and analyses” in assessing the competitive state of the broadband, wireless and multichannel video program distribution (MVPD) markets, Republican leaders in the House have asked FCC Chairman Tom Wheeler to address changes in the FCC’s definition of broadband services since 2010, why the FCC “continues to fail to make a competitive finding for the wireless market,” and why the agency “does not have a definition of competition that it applies consistently.”

In a letter delivered to Wheeler last Friday, House Energy & Commerce Committee Chairman Fred Upton (R-MI) and House Communications & Technology Subcommittee Chairman Greg Walden (R-OR) took issue with the FCC’s trend over the past five years of concluding that broadband is not being deployed in a reasonable and timely manner pursuant to Section 706 of the 1996 Telecommunications Act. Upton and Walden also observed that, during that same timeframe,  the FCC  has  declined  to make “any competitive determination at all” regarding the nation’s wireless sector despite having concluded in years past that effective competition exists in the U.S. wireless market. Meanwhile, in contrast to these trends, the lawmakers noted that the FCC had “recently adopted a presumption that cable operators are subject to effective competition.” As they spotlighted the differences between the MVPD sector—which consists of “two nationwide providers and myriad local and regional providers”—and the mobile wireless market, which encompasses “four nationwide providers, more than one hundred regional providers . . . and non- facilities-based options that also provide retail competition,” Upton and Walden took the FCC to task for failing to “offer any data or analysis to justify treating ‘effective competition’ differently in these two communications markets.”

With respect to broadband, Upton and Walden claimed that the FCC’s findings against reasonable and timely deployment are related to the agency’s “party- line” decisions in 2010 and 2015 to change the definition of broadband and to raise “threshold speeds for what services qualify as broadband.” Reminding Wheeler that “the plain language of Section 706 clearly states that the FCC should rely on the private sector to spur deployment—and that the FCC should help incent private investment by removing barriers,” Upton and Walden asked Wheeler to respond to a series of questions by February 19 “to help us understand the FCC’s decision-making and the impact of the FCC’s shifting definitions of broadband and effective competition.”  Among other things, these questions cover (1) what actions the FCC has taken or intends to take to accelerate broadband deployment in the wake of its decisions to raise broadband speed thresholds, (2) how and why the FCC determined last year that minimum speeds of 25 Mbps download/3 Mbps upload should qualify as broadband, (3) what factors led the FCC to conclude that its previous threshold of 4 Mbps/1 Mbps was insufficient, and (4) “how many choices in a given market would lead the Commission to find that mobile wireless service [are] effectively competitive?” FCC officials offered no comment.