Tag Archives: Chairwoman Jessica Rosenworcel

My Broadband Regulatory Wishlist

Chairwoman Jessica Rosenworcel wasted no time in declaring that the FCC is going to tackle reinstituting Title II regulation for broadband. She made the announcement only a few days after the Senate approved Anna Gomez to fill the open fifth Commissioner slot. Since her announcement, I’ve been thinking about the things I’d like to see the FCC tackle with five Commissioners.

Net Neutrality. This is not at the top of my list, but I put this first to get it out of the way. Most big ISPs have not been engaging in big violations of the net neutrality principles. This is partially because ISPs didn’t want to see net neutrality to be the excuse for reintroducing broadband regulation. But it’s also because California has been successful in implementing net neutrality. There is no practical way for a nationwide ISP to violate net neutrality rules everywhere except California, so they hesitate to do so. The bottom line is that discriminating against some classes of customers or types of traffic is bad business and most big ISPs just don’t go there to the extent that was always feared by net neutrality proponents. But it seems likely that the net neutrality rules will be reinstated.

Carrier Disputes. Industry insiders miss the ability to take broadband disputes between carriers to the FCC for resolution. This is a quiet part of the industry that has always been effective yet under the radar. Just the threat of taking another carrier to the FCC was often an effective negotiating tactic when ISPs violated contracts or industry practices. But killing Title II regulation for broadband meant that the FCC no longer claimed jurisdiction over many broadband disputes – leaving carriers with a much tougher path of taking disputes to court.

Consumer Protection. Probably the biggest change when Title II regulation was killed was that the FCC stopped taking an active role in protecting consumers against bad behavior by ISPs. When people got so fed up that they finally complained to the FCC about bad ISP behavior, the ISPs generally tried to resolve issues to stay on the good side of the FCC. In the cases where a lot of consumers were harmed by an ISP practice, the FCC ordered ISPs to fix bad behavior and often required refunds of overcharges. That all went away with the end of Title II regulation. The FCC still has a complaint process, but the agency just forwards consumer complaints to ISPs which have been free to ignore them. The FCC further passed the responsibility for consumer protection to the FTC to police ISP’s bad behavior – which is totally ineffective since the FTC doesn’t have the authority to set industry-wide rules and only prosecutes the worst of the worst behavior, one ISP at a time.

Merger Conditions. The FCC often used its Title II authority to make ISPs accept conditions for broadband mergers. Charter customers can all thank the FCC for blocking the company from instituting data caps as a result of an agreement made when the company wanted to merge with Time Warner Cable. The FCC has not always stuck to its guns in enforcing merger conditions, but this is one that has saved millions for Charter customers. This prohibition will end soon, so be on the lookout for Charter data caps.

Collecting Real Pricing Data. The FCC periodically does urban rates studies, but in doing so, it doesn’t collect real prices – just the prices that ISPs claim. A study in Los Angeles last year showed that Charter had different prices by neighborhood throughout the City, with the best deal being offered to areas with higher household incomes. Title II regulation theoretically would allow the FCC to somehow regulate prices – but it’s hard to imagine it would ever do so. It doesn’t regulate prices for telephone, cable, or cellular service, and it’s hard to imagine an FCC wading into this issue. But having Title II authority could give the FCC leverage to encourage lower rates when ISPs ask for other concessions from the agency.

Privacy. Like with net neutrality, California is far ahead of the FCC in terms of trying to protect customer privacy. It would be great to see the FCC change privacy policies to protect consumer data in today’s complicated online world.

Giving the States Cover for Regulating. When the FCC gave up on regulating broadband, most states did so as well. It’s difficult and expensive for states to take on the big ISPs without the cover of the FCC regulating and taking most of the industry flak. ISPs use the tactic of suing states that try to regulate them in any way.

A Broadband Map that Works. This issue probably means I am completely fantasizing. I don’t think there will ever be a broadband map that can work. When the BEAD grants are behind us, I suspect we’ll move back to not carrying how lousy the maps are. But if we are somehow forced to care about maps, it would be good if the process worked.

The Fifth FCC Commissioner

Nearly three years after the 2020 election, the FCC finally approved a fifth Commissioner for the FCC. The Senate voted 55-43 to confirm Anna Gomez as the newest FCC Commissioner. This will be the first time since Ajit Pai resigned in January 2021 that the Commission will be at full strength.

For those that might wonder why this matters, the five seats on the FCC are generally split 3-2 in favor of whatever party holds the White House. Without the third Commissioner for the party in current power, the FCC is easily gridlocked on numerous issues.

The industry is already speculating about what a fifth Democratic Commissioner might mean. President Biden made his feelings clear early in his administration that he hoped the FCC would tackle the monopoly powers of the big ISPs. However, the FCC is an independent agency that is not under the direct control of the White House, and past FCCs have not always been in lock-step with the White House.

Following are some of the issues the FCC might tackle:

Restoring Title II Regulation. We just found out yesterday that Chairwoman Jessica Rosenworcel isn’t going to waste any time after seating the fifth Commissioner, and she intends to quickly tackle the restoration of Title II regulation. The FCC under Ajit Pai eliminated Title II regulation, which was the mechanism chosen to regulate broadband since there is no specific mandate to do so from Congress. Congress could mandate that broadband be regulated by passing a law, but there have never been enough votes to do so. Until the day when Congress acts, the FCC can only regulate broadband by trying to make broadband fit into existing regulations. Title II does just that by declaring broadband to be a telecommunications service, meaning it can be regulated using the same authority used to regulate telephone and cellular services.

The press is already labeling this as an effort to reinstate net neutrality, but net neutrality is a minor portion of what it means to regulate broadband. Using the power of Title II regulation to regulate broadband means that the FCC can tackle things like mediating disputes between broadband companies, establishing some limits on broadband rates, and even doing simple things like intervening when ISPs abuse customers. Unfortunately, if the FCC pulls off the reinstatement of Title II regulation, it will begin another cycle of what I call the regulatory yoyo, where rules come and go with the change of administrations.

Tackling Broadband Discrimination. ISPs have long been accused of redlining – of only building broadband infrastructure to selected neighborhoods. If anything, it looks like many fiber builders are discriminating even more than in the past and building infrastructure only in neighborhoods with the highest returns on investment. Earlier this year, the FCC opened a docket to investigate digital discrimination, and it seems likely that this topic will take on more importance with a fifth Commissioner.

Regulating Web Companies. In the last few years, the biggest web companies have seemingly gone off the deep end and instituted policies that invite regulation. Big web platforms like Facebook and X (Twitter) are suddenly blocking news and content and allowing the proliferation of mass misinformation. It’s probably within the FCC’s power to impose some regulations on the big platforms – or to at least try.

Media Cross-ownership.  The FCC under Ajit Pai largely eliminated rules against the cross-ownership of print media and broadcast outlets – bringing in an unprecedented consolidation of the way that Americans get local news. The Ajit Pai FCC also made it easier to allow foreign investment in media companies and to relax the reporting of foreign investors. Current Chairwoman Jessica Rosenworcel has shown a desire to clamp down on the worst of these practices.

Of course, a fully staffed FCC might not tackle all of these issues or might tackle them in unexpected ways. In the past, the Chairperson of many FCCs has tried to put a personal stamp on FCC actions to make a name in history. Now that there is finally a fifth Commissioner we’re going to see what Chairwoman Jessica Rosenworcel has in mind.

Cybersecurity for Schools

FCC Chairwoman Jessica Rosenworcel recently asked the other FCC Commissioners to support a proposal to spend $200 million over three years to bolster school cybersecurity. Rosenworcel plans to issue a Notice for Proposed Rulemaking (NRPM) soon for her proposal. The NPRM will set off a round of public comments and then a ruling if a majority of the Commissioners agree with the final set of rule changes.

There seems to be some need for better school security systems. According to Emsisoft, a New Zealand-based anti-viral and anti-malware company, there were ransomware attacks on 44 U.S. universities and colleges and 45 on school districts in 2022. That was up slightly over 88 attacks in 2021. According to Emsisoft, school IT networks are a popular target since they have less security and staff with less training than corporations.

This announcement immediately raised the question for me of why the FCC is considering this. The U.S. Department of Education has a 2023 budget of $79.6 billion. I can’t help but wonder why school and university cybersecurity is not the responsibility of the USDE, state governments, or local school systems rather than the FCC.

Rosenworcel is proposing that this effort get funded from the Universal Service Fund, specifically the recently launched Learn Without Limits program that is part of the E-Rate program that subsidizes broadband connections for schools with a high percentage of low-income students. According to Rosenworcel’s press release, this could be done without undermining E-Rate’s primary mission of promoting digital equity for schools.

The E-Rate program is perhaps the most popular program at the FCC since it helps poor school districts afford gigabit broadband connections. I can see why the FCC wants to ride that wave of popularity. Rosenworcel has made other interesting proposals recently that would also come from the E-Rate program.

For example, Rosenworcel recommended that E-Rate be used to provide mobile hotspots on school buses. That seems to be an extension of bringing broadband to schools, to bring broadband to students who have long bus rides. She’s also recommended that E-Rate be used to provide Wi-Fi hotspots for students and library patrons. This also extends broadband to students but seems to be in competition with the funding from the Infrastructure Investment and Jobs Act, which is providing billions of dollars for digital equity that would also provide money for hotspots.

The main reason this raises an issue for me is that the Universal Service Fund is funded with an ever-increasing fee burden on voice lines and interstate broadband services. There has been widespread unhappiness with the FCC USF fees. There doesn’t seem to be any appetite at the FCC to let the size of the Universal Service Fund shrink when it makes sense. Instead, the FCC keeps finding new ways to spend the pot of money.

While cybersecurity for schools seems like an important function, cybersecurity is not broadband. If the FCC can sink money into cybersecurity in this manner, then what’s next – money for training for school system IT employees? I’m sure I’ll get some negative comments about my position, but I am not against somebody helping schools with cybersecurity issues. I just can’t see why this is the responsibility of the FCC.

Too Little Too Late

On July 25, Chairwoman Jessica Rosenworcel shared with the other FCC Commissioners a draft Notice of Inquiry that would begin the process of raising the federal definition of broadband from 25/3 Mbps to 100/20 Mbps. In order for that to become the new definition, the FCC must work through the NOI process and eventually vote to adopt the higher speed definition.

This raises a question of the purpose of having a definition of broadband. That requirement comes from Section 706 of the Telecommunications Act of 1996 that requires that the FCC make sure that broadband is deployed on a reasonable and timely basis to everybody in the country. The FCC interpreted that requirement to mean that it couldn’t measure broadband deployment unless it created a definition of broadband. The FCC uses its definition of broadband to count the number of homes that have or don’t have broadband.

The FCC is required by the Act to report the status of broadband deployment to Congress every year. During the last week of Ajit Pai’s time as FCC Chairman, he issued both the 2020 and 2021 broadband reports to Congress. Those reports painted a rosy picture of U.S. broadband, partially because progress was measured using 25/3 Mbps definition of broadband and partially because the FCC broadband maps were rife with overstated speeds. The FCC has not issued a report since then, and I can only suppose there aren’t the votes in an evenly split FCC to approve a new report.

To give credit, Chairwoman Rosenworcel tried to get the FCC to increase the definition of broadband to 100/20 Mbps four years ago, but the idea went nowhere in the Ajit Pai FCC. At that time, 100/20 Mbps seemed like a reasonable increase in the definition of broadband. Most cable companies were delivering 100 Mbps download as the basic product, and a definition set at 100/20 Mbps would have made the federal statement that the speeds that most folks buy in cities is a reasonable definition of broadband for everybody else.

Chairwoman Rosenworcel is now ready to try again to raise the definition. Perhaps the possible addition of a fifth Commissioner means this has a chance of passing.

But this is now too little too late. 100/20 Mbps is no longer a reasonable definition of broadband. In the four years since Chairwoman Rosenworcel introduced that idea, the big cable companies have almost universally increased the starting speed for broadband to 300 Mbps download. According to OpenVault, almost 90% of all broadband customers now subscribe to broadband packages of 100 Mbps or faster. 75% of all broadband customers subscribe to speeds of at least 200 Mbps. 38% of households now subscribe to speeds of 500 Mbps or faster.

I have to think that the definition of broadband needs to reflect the broadband that most people in the country are really using. One of the secondary uses of the FCC broadband definition is that it establishes a goal for bringing rural areas into parity with urban broadband. If 75% of all broadband subscribers in the country have already moved to something faster than 200 Mbps, then 100 Mbps feels like a speed that is already in the rearview mirror and is rapidly receding.

When the 25/3 definition of broadband was adopted in 2015, I thought it was a reasonable definition at the time. Interestingly, when I first read that FCC order, I happened to be sitting in a restaurant that was lucky enough to be able to buy gigabit speeds and was sharing it with customers. I knew from that experience that the 25/3 Mbps definition was going to become quickly obsolete because it was obvious that we were on the verge of seeing technology increases that were going to bring much faster speed.

I think the FCC should issue two broadband definitions – one for measuring broadband adoption today and a second definition as a target speed for a decade from now. That future broadband target speed should be the minimum speed required for projects funded by federal grants. It seems incredibly shortsighted to be funding any technology that only meets today’s speed definition instead of the speeds that will be needed when the new network will be fully subscribed. Otherwise, we are building networks that are too slow before they are even finished construction.

Another idea for the FCC to consider could take politics out of the speed definition. Let’s index the definition of broadband using something like the OpenVault speed statistics, or perhaps the composite statistics of several firms that gather such data. Indexing speeds would mean automatic periodic increases to the definition of broadband. If we stick to the current way of defining broadband, we might see the increase in the federal definition of broadband to 100/20 at the end of this year and won’t see another increase for another eight years.