Section 706 of the Telecommunications Act requires the FCC to determine and report annually on “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.” The Commission began this year's determination last August when it released a Notice of Inquiry (NOI) in Docket 17-199. That NOI received a tremendous amount of negative industry attention when the Commission made three controversial proposals:

First, the Commission proposed to make the availability of either fixed or mobile broadband in an area sufficient to meet the requirement that broadband is available;

Second, the Commission proposed to continue the current speed benchmark of 25 Mbps download, 3 Mbps upload (25 Mbps/3 Mbps) for fixed broadband, while establishing for the first time a mobile speed benchmark of 10 Mbps/1 Mbps.

Third, and most controversial, if a 10 Mbps/1 Mbps speed requirement for mobile broadband was approved and the Commission declared mobile broadband a substitute for fixed broadband, many consumers would be locked into the lower mobile speed as their only broadband available. Justifiably so, this potential outcome was greeted with horror by consumer advocates

On February 2, 2018, the Commission released its final 2018 Broadband Deployment Report and I am happy to report none of these poorly received proposals were approved.

Unfortunately, instead of using its analysis to determine methods for improving broadband deployment, the Commission chose to use the Report to (1) complain that for the last two years, Title II net neutrality harmed broadband deployment; (2) congratulate itself for eliminating Title II broadband regulation; and, (3) conclude that based on the actions it has taken, the state of broadband deployment is good. Remarkably, this conclusion was reached before its actions have had a chance to impact broadband deployment. Naturally, the two Democratic commissioners dissented from these conclusions.

Here is a summary of the Commission's broadband findings.

The Commission finds that mobile is not a true substitute for fixed broadband.

Both fixed and mobile services can enable access to “information, entertainment, [and] employment options,” but there are salient differences between the two technologies. Beyond the most obvious distinction that mobile services permit their users mobility, there are clear variations in consumer preferences and demands for fixed and mobile services. Each clearly provides capabilities that satisfy the statutory definition of advanced telecommunications capability, and are important services that provide different functionalities, tailored to serve different consumer needs. (Report at para. 18).

The 25 Mbps/3 Mbps benchmark for fixed broadband remains appropriate.

We find that the current speed benchmark of 25 Mbps/3 Mbps remains an appropriate measure by which to assess whether a fixed service provides advanced telecommunications capability. This finding follows the proposal in the Notice, and there is significant support in the record for maintaining the current 25 Mbps/3 Mbps speed benchmark for fixed services. (Id., para. 21).

It is too early to adopt a speed benchmark for mobile broadband.

While we acknowledge the potential benefits of a single speed benchmark for mobile service, we find–as was the case in the last report–that adoption of a single mobile benchmark is currently unworkable given the inherent variability of actual mobile speeds and our available data. (Id. At para. 27).

The Commission, while noting that the 2016 Broadband Deployment Report found that the deployment of broadband to Americans was not reasonable or timely, lists the measures it has taken since then to improve broadband deployment. These include:

Easing wireline infrastructure rules for pole attachment, copper retirement and discontinuing services under section 214(a);

Eliminating the historic preservation review requirement for replacement utility poles that have no potential effect on historic properties to aid wireless broadband deployment;

Establishing a Broadband Deployment Advisory Committee;

Releasing the Internet Freedom Order to reclassify broadband Internet access service as a Title I service and eliminating the bright line net neutrality rules.

Finally, the Commission concludes that based on its data and the actions it has taken that broadband deployment is now on the right track:

We conclude that advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. As discussed above, this finding does not mean that all Americans now have broadband access. Rather, it means that we are back on the right track when it comes to deployment. When the Commission issued the report for this inquiry in 2010, it concluded that a positive finding under section 706 would not be possible “without changes to present policies.” Consistent with this conclusion, we find that following the Commission’s negative finding in 2016, the Commission’s policy efforts are now encouraging the deployment on a reasonable and timely basis of advanced telecommunications capability (Id. paras. 94-95).

The two Democratic commissioners were outraged by the FCC's conclusions and dissented from all the Report's findings. Commissioner Clyburn was especially upset at the conclusion that broadband deployment was satisfactory based on the Commission's recent actions. Her comments speak volumes.

[T]he report bases its finding of timely broadband deployment pursuant to section 706(b) on projected deployment based off a laundry list of actions the FCC took in 2017. Specifically, the report states “while the December 2016 Form 477 data in the report does not yet reflect the beneficial effects of the Commission’s actions in 2017, the marketplace is already responding to the more deployment-friendly regulatory environment now in place.” This reminds me of the majority’s approach to competition in the Business Data Services Order, where potential competition equated to actual competition. Here the majority unsurprisingly and incorrectly states that projected reasonable and timely deployment is the same as actual reasonable and timely deployment. Critical progress reports should not rely on the “hypothetical” when it comes to reaching a conclusion. Analysis based on data that shows the current state of “Broadband Progress,” not misinterpreted measurements and cavalier explications of Congressional intent that tilts the scale against the needs of the consumer longing for broadband is what we need. Indeed, the deployments the majority loudly touts pale greatly in comparison to the deployments that occurred in the year after the adoption of the 2015 Open Internet Order. But if you are desperate to justify flawed policy, I think the straw-grasping conclusions contained in this report is for you. (2018 Broadband Deployment Report, Dissent of Mignon Clyburn).