I recently wrote a blog that discussed the possibility that the FCC would change the definition of the speed that constitutes broadband. I got a number of inquiries from readers asking how this could happen outside of the scope of the formal rulemaking process. Specifically, I had reported on the rumor that the FCC was likely to make this decision by February 3, which is not one of the dates when the FCC formally holds open meetings and votes on changes to FCC rules. Today I’m going to try to shed some light on how the FCC makes decisions, which will hopefully clarify the issue.
The FCC has several paths to make decisions. The one that the industry is most familiar with is the rulemaking process. The basic process for rulemaking for all administrative government agencies was created with the Administrative Procedure Act in 1946. This Act defined a process of changing federal rules that mandates getting feedback from the public.
The FCC might consider changing rules for several reasons. Some rule changes are mandated by Congress, with one of the more recent such FCC actions being in response to changes in consumer privacy rules. The FCC can also start a rulemaking in response to a petition asking for a clarification of the rules. In the past such petitions often came from the large carriers or else from state regulators. Finally, the FCC can simply identify an industry problem on their own and begin the rulemaking process to seek possible solutions.
The FCC then has several tools available to facilitate the rulemaking process:
- One tool available to the FCC is the NOI (Notice of Inquiry). This can be done when the FCC is trying to understand an issue and the possible solutions.
- But the NOI process is not mandatory and the agency can move directly to an NPRM (Notice of Proposed Rulemaking). This is a formal document that proposes specific rule changes. There is a defined minimum timeline for this process that includes time for the public to comment and for a second round of reply comments, if needed. During this process the FCC might allow ex parte meetings from interested parties, hold public meetings to solicit feedback or engage with industry experts to get feedback on their proposals.
- Finally, some dockets proceed to an FNPRM (Further Notice of Proposed Rulemaking). This tool is used when the comments on an NPRM cause the FCC to consider a different solution than what they originally proposed. This also then goes through the public comment process.
But not everything done at the FCC goes through the rulemaking process. For example, one of the mandated functions of the FCC is acting to adjudicate industry disputes. Industry parties that disagree on the interpretation of existing FCC rules can ask the agency to clarify – and in the case the agency takes on a nearly judicial role in looking at the facts of a specific case.
Finally, the FCC has a major administrative function. The agency has to make numerous policy decisions in order to meet its mandates from Congress. A simple way to think about this is that the rulemaking process creates formal rule changes. But then the agency must develop the processes and policies to make the new rules function. The FCC spends a lot of time on these administrative functions. For example, holding auctions for spectrum is an administrative function. Deciding how to fund and administer the Universal Service Fund is an administrative function. Approving new telecom and wireless devices is an administrative function.
The decision in the past to define the speed of broadband was an administrative decision. The agency has wide discretion to arbitrarily define administrative rules, but they often ask for public feedback.
The speed of broadband has been discussed at the FCC in several different contexts. First, the FCC has administered several grant programs and they decided that it was in the public good to set minimum broadband speeds for various grant programs. For example, the CAF II program requires the large telcos to deploy technology that delivers at least 10/1 Mbps. But there have been other speed requirements for other grant programs and the ‘experimental grants’ of a few years ago looked to fund technologies that delivered at least 100 Mbps download.
But the primary reason that the FCC decided they needed to define broadband using speeds was due to a mandate from Congress for the FCC is to report once per year on the state of broadband in the country. The Congress wants to know how many people have, or do not have broadband. Past FCCs decided that a definition of broadband was needed in order to create a meaningful report to Congress. They initially set the definition of broadband at 10/1 Mbps and later raised it to 25/3 Mbps. And they purposefully have excluded cellular broadband as not being broadband.
In anticipation of each annual broadband report the FCC sometimes asks questions of the public. They did so last year in an NOI where they asked if the 25/3 Mbps definition of broadband is too high. And they asked if cellular broadband ought to now be counted as broadband. This NOI is issued only for factfinding and to solicit public opinion on the topic. But the speed of broadband is an administrative decision of the agency, meaning that there are not formal rules associated with setting or changing the definition of broadband. The agency is free to make changes at any time to these kinds of administrative definitions. In the past the definition of broadband speeds was included with the annual broadband reports issued to Congress. And the anticipation is that the agency will use this same mechanism this year. There is no formal docket open on the topic and thus no formal and public vote is required. The FCC might or might not change the definition of broadband, but as my blog conjectured, the consensus of industry experts is that they are likely to do so. But we’ll have to wait for the annual broadband report to see if they actually lower the definition of broadband speeds or add cellular data to the definition.