The US broadband industry is protesting a Federal Communications Commission plan to measure the affordability of Internet service.
The FCC has been evaluating US-wide broadband deployment progress on a near-annual basis for almost three decades but hasn't factored affordability into these regular reviews. The broadband industry is afraid that a thorough examination of prices will lead to more regulation of ISPs.
An FCC Notice of Inquiry issued on November 1 proposes to analyze the affordability of Internet service in the agency's next congressionally required review of broadband deployment. That could include examining not just monthly prices but also data overage charges and various other fees.
"To truly close the connectivity gap and ensure that all Americans have access to advanced telecommunications capability, broadband services must be affordable," the Notice of Inquiry said.
The FCC is collecting pricing data in other contexts. But the proposed review could create an affordability benchmark—similar to a speed benchmark—and use that to determine whether ISPs are doing enough to make broadband universally available.
Cable lobby: Price analysis “inappropriate”
Cable industry lobby group NCTA-The Internet & Television Association complained in a filing released Monday that the Notice of Inquiry's "undue focus on affordability—or pricing—is particularly inappropriate." The group, which represents cable providers such as Comcast and Charter, said that setting an affordability benchmark could lead to rate regulation:
While the Commission has reiterated that it has no interest in any kind of rate regulation, the proposal to make a traditional deployment analysis contingent on whether the Commission determines that broadband pricing is sufficiently affordable suggests that rate regulation in some form is potentially on the table.
The Notice of Inquiry seeks comment on how to measure affordability, for example by asking whether the FCC should "examine prices for broadband services and compare them against a selected benchmark to determine affordability." An affordability benchmark could vary by geographic location.
The FCC review would also analyze consumer adoption of broadband, which is heavily influenced by what the service costs. The FCC collects subscriber data through its Form 477 program but is seeking comment on how to use that data and on other sources of adoption data it could examine.
AdvertisementThe Notice of Inquiry pertains to the FCC's obligations under Section 706 of the Telecommunications Act. The 1996 law requires the FCC to determine whether broadband is being deployed "on a reasonable and timely basis" to all Americans. If the answer is no, the US law says the FCC must "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market."
Analyzing affordability and adoption of Internet service could give the FCC more data to justify a determination that the broadband industry is failing to make reasonable efforts to provide service to all Americans. The FCC's Democratic majority is separately moving forward with a plan to reinstate common-carrier regulation of broadband using its Title II authority. The FCC is primarily using Title II to bring back net neutrality rules repealed during the Trump era but could use Title II for additional regulations.
The NCTA argued that "the language of Section 706 does not in any way reflect a congressional directive for the Commission to address [adoption and affordability] in what is for all intents and purposes an inquiry and report on the state of broadband deployment."
FCC proposes speed increase, too
The FCC Notice of Inquiry also proposes to raise the speed of its benchmark for determining whether a broadband service counts as "advanced telecommunications capability." People often refer to this as the FCC's broadband definition. The benchmark was last updated in January 2015 and remains at 25Mbps downstream and 3Mbps upstream.
Trump-era FCC Chairman Ajit Pai kept the 25Mbps/3Mbps standard throughout his term. The new Notice of Inquiry prepared by Chairwoman Jessica Rosenworcel proposes raising the standard to 100Mbps on the download side and 20Mbps for uploads. The notice also proposes "a long-term fixed broadband speed goal" of 1Gbps download speeds and 500Mbps upload speeds.
USTelecom, which represents fiber and DSL providers such as AT&T and Verizon, supported the 100Mbps/20Mbps benchmark but objected to the long-term goal of 1Gbps/500Mbps. The trade group argued that the 500Mbps upload benchmark would shut out all non-fiber networks.
"Today, the only deployed technology capable of providing 1Gbps/500Mbps is fiber," USTelecom wrote. The group claimed that the FCC should ditch this long-term goal because "there are locations where deployment of fiber is not practicable now and may never be. In order to serve all Americans, speed benchmarks must be technology-neutral so that providers have the flexibility to choose the technology that will best suit each build."
USTelecom joined the NCTA in objecting to the FCC analyzing prices and adoption. USTelecom said the FCC should "limit its inquiry to the progress of broadband deployment, or availability, and eschew questions related to adoption, affordability, competition, and equitable access, which are the focus of other statutory provisions and programs."
ISPs have history of objecting
ISPs previously objected to the collection of pricing data in other contexts, such as when the FCC proposed rules prohibiting discrimination in access to broadband services. The FCC approved those rules despite broadband lobby groups and Republicans objecting to a requirement that prices charged to consumers be non-discriminatory.
In yet another proceeding, ISPs complained about a rule requiring them to list all their monthly fees in a format modeled on nutrition labels. The FCC rejected their complaints and issued the rule.
The FCC also collects pricing data as part of the Affordable Connectivity Program that offers discounts to people with low incomes. USTelecom pointed to those other data collections while arguing that Section 706 doesn't authorize any examination of prices:
Not only are price and affordability outside the scope of the Commission's Section 706 inquiry into the progress of deployment, but the Commission is already collecting pricing data as part of the Affordable Connectivity Program ("ACP") data collection and the forthcoming Consumer Broadband Labels. In the Infrastructure Act, Congress specifically required the Commission to establish these data collections to obtain pricing information from broadband providers, and the Commission lacks authority to duplicate such information collection as part of its Section 706 inquiry.
Nor should the Commission further pursue its questions on rate benchmarks that can only be seen as a form of rate regulation. There is no reason to require providers or the agency to devote time and resources to such efforts that are either duplicative of other programs or wholly new efforts without any mooring to statutory authority.
USTelecom is further opposed to an examination of the reasons why some consumers do not purchase broadband service, which may reveal how many people go without broadband because it's too expensive.
"Even where broadband is available, individuals may not adopt it for myriad reasons, including relevance, lack of access to devices, or lack of digital skills, to name a few," USTelecom told the FCC. "Adoption is not the same as availability, which is the Congressionally mandated focus of Section 706, and the Commission should not conflate these two concepts, nor incorporate adoption into its evaluation of reasonable and timely deployment."
AdvertisementElectric co-ops want focus on prices, faster speeds
The FCC did hear from some groups that support price and adoption analyses. The National Rural Electric Cooperative Association (NRECA) urged the FCC "to focus on and undertake efforts to address affordability of broadband service."
Many electric co-ops provide broadband in places where private ISPs have not built modern networks. The NRECA said its members "are keenly aware of the many affordability challenges for their customers, particularly considering they collectively serve 92 percent of the persistent poverty counties identified by the US Census Bureau."
"NRECA co-ops have successfully won and relied on federal broadband grant funding to build out into some of the most remote areas of the country. But consumers still must be able to afford the service for the digital divide to be truly closed," the group said.
The NRECA also urged the FCC to adopt even faster broadband speed benchmarks. The agency should "implement a 100Mbps symmetrical standard, and a long-term goal of symmetrical 1Gbps standard," the group said.
“Cost remains one of the biggest barriers”
In support of a pricing analysis, New America's Open Technology Institute said that "if the cost of broadband service is higher than millions of people can afford, service cannot be said to be available."
"Cost remains one of the biggest barriers to broadband adoption for Americans, and the Commission will soon have access to information on service cost through the broadband nutrition labels mandated by the Infrastructure Act," the group said. "The Commission must analyze the effects of cost on broadband availability and adoption to truly understand whether broadband is being deployed in a reasonable and timely manner, and use data from the nutrition labels to set benchmarks around pricing."
The advocacy group said the FCC could combine data from different programs to uncover violations of the agency's new anti-discrimination rules. "Comparing broadband deployment data collected for Section 706 and pricing data collected in broadband nutrition labels to existing federal data on demographics and income could reveal discriminatory policies and practices by Internet service providers, which are prohibited under the new digital discrimination order," the Open Technology Institute said.
The Benton Institute for Broadband & Society advocated for a "systematic approach to tracking broadband affordability" that would include measuring the prices paid by consumers in different income categories for both wireline and wireless services. Benton also wants this analysis to include the speeds that households in each income tier subscribe to.
"Consumer behavior is part of the picture: we cannot reach our universal broadband goals without widespread adoption and we cannot achieve universal broadband adoption if service is not affordable," the group said.
