In a Notice of Inquiry (NOI) that also relates to Section 706 of the 1996 Telecommunications Act, the FCC requested comment last Thursday on its upcoming twelfth annual report to Congress on the status of broadband deployment and capability throughout the U.S. 

The NOI fulfills Congressional mandate pursuant to Section 706.  In recent years, the FCC has used negative findings in its annual Section 706 reports as the basis for regulatory actions (such as the 2015 Open Internet order) that seek to promote broadband network deployment as well as choice and competition in the national broadband sector.  Comments and reply comments on the NOI are due September 6 and September 21, respectively.

As part of its eleventh annual report issued last January, the FCC adopted download speeds of 25 Mbps and upload speeds of 3 Mbps as the minimum standard by which broadband services should be judged to meet the statutory goal of “reasonable and timely deployment” of advanced telecommunications capability.  Noting that ten percent of Americans lack access to broadband services at those speeds, the FCC determined last year that the goals of Section 706 were not being met.  The FCC also proclaimed that the U.S. population must have equal access to both mobile and fixed broadband services for the Section 706 requirement to be satisfied, concluding that mobile and fixed services complement each other. 

Soliciting comment on the upcoming report, the FCC asks stakeholders to weigh in on whether the newly-adopted 25 Mbps/3 Mbps benchmark for fixed broadband services should be updated and whether the agency should “establish a speed benchmark for mobile broadband.”  The NOI also requests input on “the relationship of non-speed performance metrics, including service consistency and latency, to advanced telecommunications capability” and whether benchmarks should be adopted for these metrics.  Comment is also sought on other factors that may affect broadband deployment and availability as well the availability of “additional or alternative sources of data . . . to inform our analysis under Section 706.”

Despite voting in favor of the NOI, FCC Commissioner Ajit Pai joined FCC Commissioner Michael O’Rielly in issuing concurring statements that question the potential outcome of the FCC’s proceeding.  Charging that the proceeding “promises to play” with “a predictable script” in which “the FCC will find that broadband is not being deployed ‘in a reasonable and timely manner,’” Pai said the NOI should focus instead on what the FCC has “done to encourage broadband deployment.”  O’Rielly, meanwhile, highlighted the FCC’s conclusion in the eleventh report “that wired and wireless services are not functional substitutes” -- a notion which O’Rielly said was challenged by the “perceptions and personal behavior” of Americans which “find them so.”  Observing that the FCC “appears prepared to declare that consumers must have access to both, or a perpetual threat of a negative Section 706 finding looms in the balance,” O’Rielly remarked:  “the Commission seems to be no closer to defining the magical measurements of ubiquitous wireless service components that would be necessary to avoid such a finding.”