The Section 706 Sneak: How The FCC is Using Legal Gymnastics to Excuse Itself From Getting Americans Internet Access

If you were to take a survey of nutritionists and ask them what food group pizza falls into, odds are few would say it qualifies as a vegetable.

And yet, when the time came for the U.S. government to satisfy public policy quotas to ensure school children were getting enough vegetables, faced with two options — to either (1) get more vegetables to school cafeterias; or (2) redefine what a “vegetable” was to encompass foods like pickle relish and pizza — they chose the latter. With the wave of a wand and a dose of bureaucratic magic, pizza became a vegetable.

This August, the Federal Communications Commission voted to begin a proceeding that would do the same kind of wand-waving with its duties to ensure broadband connectivity for all Americans.

Overview: I’ve got some bad news and some good news. Bad news first.

The FCC is currently in the process of redefining much of rural and low-income America in reverse when it comes to Internet access.

The good news: There is still time to tell them that’s a bad idea. In fact, just recently, the FCC listened to calls from stakeholders, as well as 12 members of the U.S. Senate, to extend the time allotted for people to weigh in. (That’s your hint to do so, here!)

The FCC is the expert agency charged with oversight of our nation’s critical communications systems. One of their duties is to ensure efforts to get Internet access to the areas of the country that do not currently have it, or whose access is crippling slow. This requirement is located in section 706 of the Communications Act, where the FCC gets its orders from Congress. It is required to ensure timely deployment of advanced communications access by law. To this end, the FCC is required to do an annual assessment report of whether that’s happening, and if the agency finds it is not, then it is required by law to take immediate steps to get the access ball rolling more quickly.

If you’re like most people, at this point in the 21st century, you consider Internet an essential service to participate in daily life. We need it not just for the fun stuff like streaming TV, but to apply for healthcare, jobs, and colleges, and even for kids to do their basic homework assignments. Heck, it’s how you’re reading this right now.

But there are still vast swaths of America that go unserved or underserved for this service. O’er dale and valley, people still struggle to gain the necessary online access to apply for jobs, healthcare, banking, and colleges. Kids struggle to do their homework. Many conveniences some areas of the country take for granted are a constant uphill climb for folks in rural and low-income areas. In some cases, it can be a matter of life or death.

The last FCC took a hard look at what qualifies as being “served” for purposes of that report I mentioned, and decided that a certain speed should be the minimum (what’s called 25 megabits per second down, 3 up). It also decided that Americans need wireline and wireless — that wireless isn’t sufficient, because it’s less reliable and provides less robust access than physical wires can. For instance, you’re going to get worse service if you live down in a hollow in rural West Virginia than on the top of a hill — the airwaves just don’t work the same way.

But just last month the current Chairman introduced a measure that would effectively leave Americans who lack adequate access in broadband purgatory by defining the FCC out of its obligations to ensure timely deployment. Rather than fix the problem, the FCC is suggesting just moving the goalposts. Its alarming propositions in a nutshell:

1. Wireless = Wireline: The FCC wants to say that wireless is a sufficient replacement — rather than complement/supplement — to the more robust, faster, reliable wired broadband access. What this means is that if the FCC’s report determines there is wireless in a given area in its report, that area is considered served, and the agency is free to tick that box and walk away, without having to take further steps to improve the situation of those customers.
2. Slower speeds are just fine: Specifically because wireless is less robust and reliable than wired access, the FCC further suggests that where wireless is the “served area,” slower speeds will be considered sufficient than what is considered “served” in wired areas. So where “high-speed” Internet is considered 25/3 over wired access, the wireless access will be called acceptable at speeds of only 10/1.

The effect of all of this is as follows: the FCC has a requirement to take steps to get Americans “broadband access;” “broadband access” is supposed to be defined as (a) fixed and wireline and (b) at speeds of 25/3 minimum; many Americans do not currently possess that type of “broadband access”; rather than take said steps to address that problem and build out and upgrade to those Americans currently lacking said “broadband access,” the FCC instead would redefine “broadband access” so that they have to do far less to connect those Americans still struggling to get online; and would structure the annual report so that people are considered “covered” when, in fact, they are not.

Now, anyone with 10/1 wireless access in rural or low income areas can tell you it’s not a sufficient way to live in the digital age. Try telling your kid to research and file a paper on their mobile phone in a McDonald’s parking lot. Try applying for a job or healthcare service over mobile Internet when your house is down in a low valley instead of up on a hill. Try syncing your smart tractor over wireless when a productive season’s yield rides on it. I am confident you’ll find yourself significantly disadvantaged in accomplishing many of even the most basic of daily tasks.

And of course, this ignores that in many cases, speed tests show that consumers who are paying for even the meager 10/1 wireless speed frequently receive far less in practice. In fact, when the industry tells you you’re paying for 10 Mbps it really means “up to 10 Mbps.” That’s some great fine print there.

All of this is to say that the FCC’s Notice of Inquiry amounts to a willful abdication of its statutory duties to ensure connectivity for Americans, as mandated by Congress. It’s the Food and Nutrition Services with nutritional requirements for vegetables for children in schools, and rather than ensuring more kids get more broccoli, reworking the law so that pizza with tomato sauce qualifies as a “vegetable.” Rather than do their job, the FCC has decided to lower the bar. And whereas I’m sure many people prefer pizza to broccoli, I think you’d be hard-pressed to find many people who are satisfied or can function with a 10/1 wireless connection that often doesn’t even hit that low-water mark. (And as you may know, believe me, I’ve heard it first hand, and so has the FCC).

But there is still time to fix this.

The good news is that at its current point in the process, this proposal is only a tentative suggestion that such changes are in order. Notice of Inquiries merely set the stage for FCC policy making — posing questions that intimate the FCC’s thinking and enable stakeholders to weigh in with their opinion on whether it’s a good or bad idea. In this case, I’m leaning towards “bad idea” and suggest that anyone who would wish to see unconnected America connected should lean that way as well.

And in a positive turn of events, the Commission heeded the call of public interest groups, companies, and 12 U.S. Senators to extend the comment deadline on this proceeding that would have such disruptive ramifications for the fundamental connectivity for so many Americans. You have until September 21 to file first round comments and October 6 for additional ones.

So let’s all get cracking! Let’s not let the agency change the rules for its own homework assignment so it doesn’t have to do the project. Congress told them in no uncertain terms to get real, high-functioning connectivity to all Americans, to every corner of our nation. No one should have to settle for less.