The recently passed Senate infrastructure legislation included a new definition of an underserved household as being a location that lacks access to reliable broadband service offered with a speed of not less than 100 megabits per second for downloads; and 20 megabits per second for uploads, plus a latency sufficient to support real-time, interactive applications. It’s hard to see this as anything other than a new definition of broadband.
Before jumping completely off this cliff, it’s worth revisiting the history of the federal definition of broadband. The FCC is required to establish a definition of broadband. Congress established this obligation in Section 706 of the FCC governing rules that require the agency to annually evaluate broadband availability in the country. The FCC must then report the state of broadband to Congress every year using the established definition. In these reports, the FCC compiles data about broadband speeds and availability and offers an opinion on the state of broadband in the country. Further, the FCC must act if broadband is not being deployed in a timely manner – but no FCC to date has concluded that the agency is not doing a great job with broadband deployment.
In 2015, the FCC established the current definition of broadband as 25/3 Mbps (that’s 25 Mbps download and 3 Mbps upload). Prior to 2015, the FCC definition of broadband was 4/1 Mbps, set a decade earlier. The FCC didn’t use empirical evidence like speed tests in setting the definition of broadband in 2015. They instead conducted what is best described as a thought experiment. They listed the sorts of functions that a “typical” family of four was likely to engage in and then determined that a 25/3 Mbps broadband connection was enough speed to satisfy the broadband needs of a typical family of four.
The FCC asked the question again in 2018 and 2020 if 25/3 Mbps was still an adequate definition of broadband. The Commission took no action and concluded that 25/3 Mbps was still a reasonable definition of broadband. There were comments filed by numerous parties that argued that the definition of broadband should be increased.
Unfortunately, as happens with many regulatory requirements, the FCC has not been an honest broker in looking at the definition of broadband. There are political consequences for any FCC that increases the definition of broadband because doing so means declaring that millions of households would suddenly classified as not having adequate broadband. If the FCC changes the definition of broadband from 25/3 to 100/20 Mbps, then every home with speeds between 25/3 and 100/20 Mbps suddenly be considered to not have adequate broadband. No FCC wants to be the one that increases the number of homes without broadband.
All of this is politics, of course, and homes and businesses know if broadband is adequate without the FCC setting some arbitrary speed as magically being broadband. Is the home that gets 27 Mbps all that different than one that’s getting 23 Mbps? Unfortunately, when it comes to being eligible for federal grant monies it matters.
I think there is a good argument to be made that the Senate just preempted the FCC in setting the definition of broadband. Declaring that every home or business with speeds less than 100/20 Mbps is underserved is clearly just another way to say that speeds under 100/20 Mbps are not good broadband.
Of course, the FCC could continue to use 25/3 Mbps as the definition of broadband for the purposes of the annual report to Congress. But Congress just changed the definition of broadband that matters – the one that comes with money. If the infrastructure legislation become law it will allow states to use the huge $42.45 billion of federal funding to upgrade the broadband in places that have broadband speeds under 100/20 Mbps.
Of course, the Senate legislation has not yet been enacted because the House of Representatives needs to now pass fresh infrastructure legislation, and then the two versions of new law must be reconciled before going into effect. But the Senate legislative language couldn’t be clearer – 25/3 Mbps is no longer the definition of broadband that matters.