The FCC is Ignoring Its Section 706 Responsibilities

I was recently re-reading the FCC’s 2019 Broadband Deployment Report to Congress. That report was mandated by the Telecommunications Act of 1996 and gave the FCC specific obligations to make sure that everybody in the country has access to ‘advanced telecommunications’, which today is understood to mean broadband. It’s worthwhile for broadband advocates to occasionally be reminded of the FCC’s legal obligations concerning broadband. Following is a slightly abridged version of Section 706 of the Commission’s rules:

The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment. The Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission’s determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.

As I read the 2019 report, I can’t help but conclude that the Commission is failing its Section 706 obligations in several big ways. The first obligation is to determine if advanced telecommunications are being deployed to all Americans. The 2019 report has hundreds of pages of numerical data concerning the deployment of landline and cellular broadband. However, the tables are largely fiction since they are based upon massively faulty data reported by ISPs and cellular carriers.

We know that rural cellular coverage data is also terrible because the FCC just issued a report saying so in December. It didn’t take the FCC report to validate this, because anybody living or working in rural America knows there are still huge holes in cellular coverage.

The FCC data on landline broadband is abysmal. I know this from working with rural counties to find broadband solutions. In those counties, we’ve mapped out the FCC’s data that shows that large swaths of counties have broadband speeds of at least 10/1 Mbps, or even 25/3 Mbps when in fact there is practically no broadband outside of a county seat or another town or two. In county after county, the FCC data is seriously wrong and claims broadband coverage where it doesn’t exist. Where there is rural broadband coverage, the FCC data generally overstates the speeds and classifies areas where homes can get just a few Mbps as having decent broadband.

The FCC knows their data is bad and has been shown the extent of the errors in ex parte meetings with local officials. Yet the FCC continues to accumulate the lousy data and make policies based upon the bad numbers. In the 2019 report, they say: the data demonstrates that six percent of Americans, over 19 million households, lack access to fixed terrestrial advanced telecommunications capability and we recognize that the situation is especially problematic in rural areas, where over 24% lack access, and Tribal Lands, where 32% lack access. Those statistics are incredibly understated. Across the country local counties claim that the rural data for their counties is off by 20% to 60%, meaning that the numbers cited above by the FCC are likely off that much as well. While the FCC claims there are 19 million rural homes without good broadband we don’t know if this is really 24 million or 28 million or 32 million – because of the FCC complacency we have no way to guess at the extent of the lack of broadband.

The FCC is clearly shirking its duty to fix poor rural broadband. The Section 706 language couldn’t be clearer. The FCC is required to take immediate action to accelerate broadband deployment where it is not being deployed in a reasonable and timely fashion.

In the 2019 report, the FCC defends not taking immediate steps to fix the lack of broadband as follows: the Commission has previously explained, the statute requires that we determine whether advanced telecommunications capability “is being deployed to all Americans”—not whether it has already been deployed to all Americans. Our policymaking efforts over the last two years are promoting broadband deployment, and the data show that ISPs are making strong progress in deploying advanced telecommunications capability to more and more Americans. These circumstances warrant a positive finding. The FCC not only shirks taking any action, but they also pat themselves on the back for having undertaken policies that promote broadband deployment.

I should make it clear that this is not just an indictment of the current FCC. The last several FCCs have used similar verbal gymnastics to avoid taking responsibility to fix rural broadband. But there is one new thing the current FCC has done that makes it harder for them to tackle rural broadband. The Section 706 language directs the FCC to use regulatory tools such as price cap regulation and regulatory forbearance to help tackle the lack of broadband. The current FCC actively wrote themselves out of the regulatory picture for broadband. They can no longer use price caps or forbearance (relaxing regulations in rural areas) as regulatory tools since they no longer regulate broadband.

To give the FCC some credit, they have undertaken huge RDOF grants that will bring better broadband to a few million rural homes. However, by keeping on the blinders about the bad data these grants will not be used to tackle broadband in areas where the FCC maps overstate broadband coverage. And the grants are likely, in some cases, to go to ISPs like the satellite providers that bring no new solutions to rural America. Unfortunately, it’s easy to predict that the FCC will rest on their laurels for years to come, claiming that the RDOF grants take them off the hook for further solving the lack of rural broadband.