Cable lobby to FCC: Please don’t look too closely at the prices we charge

The US broadband industry is protesting a Federal Communications Commission plan to measure the affordability of Internet service.

The FCC has been evaluating US-wide broadband deployment progress on a near-annual basis for almost three decades but hasn't factored affordability into these regular reviews. The broadband industry is afraid that a thorough examination of prices will lead to more regulation of ISPs.

An FCC Notice of Inquiry issued on November 1 proposes to analyze the affordability of Internet service in the agency's next congressionally required review of broadband deployment. That could include examining not just monthly prices but also data overage charges and various other fees.

"To truly close the connectivity gap and ensure that all Americans have access to advanced telecommunications capability, broadband services must be affordable," the Notice of Inquiry said.

The FCC is collecting pricing data in other contexts. But the proposed review could create an affordability benchmark—similar to a speed benchmark—and use that to determine whether ISPs are doing enough to make broadband universally available.

Cable lobby: Price analysis “inappropriate”

Cable industry lobby group NCTA-The Internet & Television Association complained in a filing released Monday that the Notice of Inquiry's "undue focus on affordability—or pricing—is particularly inappropriate." The group, which represents cable providers such as Comcast and Charter, said that setting an affordability benchmark could lead to rate regulation:

While the Commission has reiterated that it has no interest in any kind of rate regulation, the proposal to make a traditional deployment analysis contingent on whether the Commission determines that broadband pricing is sufficiently affordable suggests that rate regulation in some form is potentially on the table.

The Notice of Inquiry seeks comment on how to measure affordability, for example by asking whether the FCC should "examine prices for broadband services and compare them against a selected benchmark to determine affordability." An affordability benchmark could vary by geographic location.

The FCC review would also analyze consumer adoption of broadband, which is heavily influenced by what the service costs. The FCC collects subscriber data through its Form 477 program but is seeking comment on how to use that data and on other sources of adoption data it could examine.

The Notice of Inquiry pertains to the FCC's obligations under Section 706 of the Telecommunications Act. The 1996 law requires the FCC to determine whether broadband is being deployed "on a reasonable and timely basis" to all Americans. If the answer is no, the US law says the FCC must "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market."

Analyzing affordability and adoption of Internet service could give the FCC more data to justify a determination that the broadband industry is failing to make reasonable efforts to provide service to all Americans. The FCC's Democratic majority is separately moving forward with a plan to reinstate common-carrier regulation of broadband using its Title II authority. The FCC is primarily using Title II to bring back net neutrality rules repealed during the Trump era but could use Title II for additional regulations.

The NCTA argued that "the language of Section 706 does not in any way reflect a congressional directive for the Commission to address [adoption and affordability] in what is for all intents and purposes an inquiry and report on the state of broadband deployment."

FCC proposes speed increase, too

The FCC Notice of Inquiry also proposes to raise the speed of its benchmark for determining whether a broadband service counts as "advanced telecommunications capability." People often refer to this as the FCC's broadband definition. The benchmark was last updated in January 2015 and remains at 25Mbps downstream and 3Mbps upstream.

Trump-era FCC Chairman Ajit Pai kept the 25Mbps/3Mbps standard throughout his term. The new Notice of Inquiry prepared by Chairwoman Jessica Rosenworcel proposes raising the standard to 100Mbps on the download side and 20Mbps for uploads. The notice also proposes "a long-term fixed broadband speed goal" of 1Gbps download speeds and 500Mbps upload speeds.

USTelecom, which represents fiber and DSL providers such as AT&T and Verizon, supported the 100Mbps/20Mbps benchmark but objected to the long-term goal of 1Gbps/500Mbps. The trade group argued that the 500Mbps upload benchmark would shut out all non-fiber networks.

"Today, the only deployed technology capable of providing 1Gbps/500Mbps is fiber," USTelecom wrote. The group claimed that the FCC should ditch this long-term goal because "there are locations where deployment of fiber is not practicable now and may never be. In order to serve all Americans, speed benchmarks must be technology-neutral so that providers have the flexibility to choose the technology that will best suit each build."

USTelecom joined the NCTA in objecting to the FCC analyzing prices and adoption. USTelecom said the FCC should "limit its inquiry to the progress of broadband deployment, or availability, and eschew questions related to adoption, affordability, competition, and equitable access, which are the focus of other statutory provisions and programs."