FCC Begins Inquiry to Increase Minimum Fixed Broadband Speeds

There is more work coming down the pike for broadband service providers. In recent months they have been required to produce new service maps, new labels, new requirements for distributing universal service funds and new rules for ensuring non-discrimination. Apparently, that is just the beginning. If Title II is reinstated in the Net Neutrality proceeding, ISP broadband pricing and Internet conduct will again be regulated. In addition, on November 1, 2023, the FCC released a Notice of Inquiry (NOI) in Docket 22-270 to increase minimum download and upload fixed broadband speeds as required by section 706 of the Telecommunications Act. Industry comments are due on December 1, 2023.

Section 706 requires the Commission to annually conduct an inquiry concerning the availability of advanced telecommunications capability to all Americans as part of an effort to determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.

As FCC Chairwoman Jessica Rosenworcel stated,

During the pandemic and even before it, the needs of internet users surpassed the FCC’s 25/3 [Mbps] standard for broadband. This standard is not only outdated, it masks the extent to which low-income neighborhoods and rural communities are being left offline and left behind. In order to get big things done, it is essential to set big goals. That is why we are kicking off this inquiry to update our national broadband standard and also set a long-term goal for gigabit speeds. (FCC November 1, 2023, News Release.

Specifically, the NOI proposes to increase the national fixed broadband speed benchmark to 100 Mbps per second for download and 20 Mbps per second for upload. The Commission previously set the benchmark at 25/3 Mbps in 2015 and has not updated it since. The NOI also seeks comments on setting a separate national goal of 1 Gbps/500 Mbps for the future.

The FCC asserts that these higher speeds are already almost always deployed and provided by ISPs to customers.

Deployment trends also suggest that raising the benchmark is a reasonable course of action. According to December 2022 BDC data, approximately 91% of broadband-serviceable locations had access to a terrestrial fixed broadband service with download speeds of at least 100 Mbps in December 2022. FCC Form 477 deployment data showed that since 2017, more than 90% of the population has had access to terrestrial fixed broadband service with download speeds of at least 100 Mbps, with that percentage increasing to 95.1% by December 2021. (NOI, at para. 17).

In addition to fixed broadband speeds, the NOI examines how the Commission should regulate mobile broadband speeds. The agency has not adopted a mobile advanced telecommunications capability benchmark previously due to the inherent variability in the performance characteristics of mobile service, both geographically and temporally. Now, it asks whether it should adopt a speed benchmark to assess whether mobile services provide advanced telecommunications capability, and if so, what should that benchmark be?

The FCC also uses the NOI to seek industry comments regarding its proposed universal service goals for broadband—deployment, affordability, adoption, availability, and equitable access. It asks the industry how to define these goals, how these goals can be evaluated, and what data is available to assess each goal.

For example, it proposes to evaluate whether broadband has been universally deployed by evaluating the physical deployment of broadband networks that can provide service at its speed benchmark(s) for advanced telecommunications capability.

There was not unanimity among the FCC commissioners on the issues raised in the NOI. Republican Commissioner Nathan Simington is concerned about the Commission’s goal of 1000/500Mbps for the definition of broadband. He notes,

All else being equal, no one would choose 100/20Mbps service over 1000/500Mbps service, but the vast majority of consumers do not materially benefit from such high speeds, and deploying such high-speed service is not free… This is not a mere rhetorical concern. Adopting a long-term target of 1000/500Mbps would send the message that in the near future, the FCC will consider speeds below that to be inadequate. By operation of the principles that have long guided our high-cost programs, this would put ISPs on notice that the FCC could soon subsidize competitors in any area where 1000/500Mbps connections are not available. Subsidized competition undermines the already tenuous profitability of rural ISPs, so they will choose to invest their limited resources into serving fewer locations at 1000/500Mbps, thereby protecting themselves from future subsidized competition, rather than into serving more locations at lower but very adequate speeds such as 100/20Mbps or 200/100Mbps. The bottom line is that more Americans would be left unserved because the FCC pursued science fiction instead of sober policy. (Statement of Commissioner Nathan Simington Approving in Part and Concurring in Part).

Whatever your feelings about the higher speed requirements, it is clear that they are coming soon. It is important to participate in this NOI to ensure that ISP requirements are not too onerous.