Last month, the Federal Communications Commission (“FCC”) raised the fixed broadband speed benchmark from 25/3 megabits per second (“Mbps”) to 100/20 Mbps and concluded that “advanced telecommunications capability is not being deployed to all Americans in a reasonable and timely fashion.” As a consequence, the FCC concluded that “section 706 [of the Telecommunications Act of 1996] requires [it] to ‘take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.’”

Background

In section 706 of the Telecommunications Act of 1996, Congress directed the FCC to undertake an annual analysis of the availability of advanced telecommunications capability (i.e., broadband) to all Americans and make a determination about “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.”  As noted above, section 706 instructs the FCC to take action to accelerate deployment if it determines that broadband is not being deployed in a reasonable and timely fashion.  The scope of authority conferred on the FCC by section 706 remains a subject legal debate, though it is cited as a source of authority in the Commission’s draft Safeguarding and Securing the Open Internet Order, which is on the agenda for its April Open Meeting. More information on the Open Internet Order can be found here.

The 2024 Section 706 Report is the first adopted by the FCC since the enactment of the Infrastructure Investment and Jobs Act (IIJA), which appropriated $65 billion for broadband deployment through various programs and further defined federal policy concerning “universal deployment, affordability, adoption, availability, and equitable access to broadband.”  It also is the first section 706 report to assess deployment using the more granular broadband availability data collected through the FCC’s Broadband Data Collection pursuant to the Broadband DATA Act.   

How the FCC Analyzes Broadband Deployment

Consistent with past reports, the FCC concluded “that consumers have advanced telecommunications capability only to the extent that they have access to both fixed and mobile broadband service.”  To determine whether consumers have access to these services, the FCC primarily looks at whether consumers can obtain fixed and mobile broadband at designated speed benchmarks at non-enterprise locations (i.e., residences and small businesses).  As the FCC explained in the Report, based on evaluation of available data for fixed broadband services, the FCC “can no longer conclude that broadband at speeds of 25/3 Mbps—the fixed benchmark established in 2015 and relied on in the last seven reports—supports ‘advanced’ functions.”  Accordingly, the FCC raised the benchmark for fixed broadband to download speeds of at least 100 Mbps and upload speeds of at least 20 Mbps.  The FCC observed that changes in consumer usage trends, particularly the rise in telework and telehealth since the onset of the COVID-19 pandemic, as well as Congress’s determination in the IIJA to provide funding only for broadband programs offering speeds of at least 100/20 Mbps, justified this determination.  

The Report also adopted a long-term fixed broadband speed goal of 1,000 Mbps, or 1 gigabit per second (“Gbps”), download speed paired with 500 Mbps upload speed.  The FCC stated that it set this standard “to give stakeholders a collective goal towards which to strive” and that the FCC will not use it as a measure to make determinations under section 706.  For mobile broadband service, the FCC does not evaluate deployment for the purposes of making a section 706 determination with any specific speed benchmark due to the highly variable nature of mobile broadband service.  However, for the limited purposes of this Report, the FCC focused on the availability of 5G-NR service at 35/3 Mbps because it is the most advanced mobile technology currently deployed. 

In addition to these speed benchmarks used to assess physical deployment, the FCC also for the first time examined in its Report the extent to which the universal service goals of affordability, adoption, availability (i.e.,consistency and quality of service), and equitable access were being met.  Given the novelty of assessing access to broadband using these standards, the FCC limited the conclusions it drew from its analysis, but indicated an intent to continue reviewing these standards in future reports. 

The Consequences of the FCC’s Determination 

After examining the broadband availability data detailed in the Report, the FCC determined that advanced telecommunications capability is not being deployed in a reasonable and timely fashion.  The FCC observed that over 24 million Americans lack access to fixed broadband, with the vast majority of those Americans living in rural and Tribal areas where there is a particular need for “broadband to obtain access to the economic, educational, and health care resources that people in urban areas are largely able to take for granted.”  Accordingly, consistent with section 706’s mandate to “take immediate action” the FCC indicated that it “will consider, among other things, the suggestions for ‘removing barriers to infrastructure investment and by promoting competition in the telecommunications market’ from commenters in the record developed in this proceeding.”  Going forward, it would be appropriate to expect FCC policy decisions to be guided by this objective.

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Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Matthew DelNero Matthew DelNero

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy…

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy challenges.

Matt serves as co-chair of Covington’s Technology & Communications Regulation (“TechComm”) Practice Group and co-chair of the firm’s Diversity & Inclusion initiative.

Matt advises clients on the full range of issues impacting telecommunications, technology and media providers today, including:

  • Structuring and securing FCC and other regulatory approvals for media and telecommunications transactions.
  • Conducting regulatory due diligence for transactions in the telecommunications, media, and technology sectors.
  • Obtaining approval for foreign investment in broadcasters and telecommunications providers.
  • Universal Service Fund (USF) programs, including the FCC’s Rural Digital Opportunities Fund (RDOF).
  • FCC enforcement actions and inquiries.
  • Online video accessibility, including under the Communications and Video Accessibility Act (CVAA) and Americans with Disabilities Act (ADA).
  • Equipment authorizations for IoT and other devices.
  • Spectrum policy and auctions, including for 5G.
  • Privacy and data protection, with a focus on telecommunications and broadband providers.

Matt also maintains an active pro bono practice representing LGBTQ+ asylum seekers, as well as veterans petitioning for discharge upgrades—including discharges under ‘Don’t Ask, Don’t Tell’ and predecessor policies that targeted LGBTQ+ servicemembers.

Prior to rejoining Covington in January 2017, Matt served as Chief of the FCC’s Wireline Competition Bureau. He played a leading role in development of policies around net neutrality, broadband privacy, and broadband deployment and affordability under the federal Universal Service Fund (USF).

Chambers USA has recognized Matt as a “go-to attorney for complex matters before the FCC and other federal agencies, drawing on impressive former government experience.”

Photo of John Cobb John Cobb

John Cobb is an associate in the firm’s Washington, DC office and a member of the Technology and Communications Regulation Practice Group. Prior to joining Covington, John served as the Legal Advisor to the FCC’s Broadband Data Task Force where he provided legal…

John Cobb is an associate in the firm’s Washington, DC office and a member of the Technology and Communications Regulation Practice Group. Prior to joining Covington, John served as the Legal Advisor to the FCC’s Broadband Data Task Force where he provided legal guidance to the Task Force on matters related to implementation of the Broadband DATA Act and the FCC’s Broadband Data Collection. Before that, John served as an Honors Attorney in the Policy Division of the FCC’s Media Bureau where he worked on matters affecting the media industry, including multiple administrative rulemakings in the Modernization of Media Regulation Initiative.

Photo of Andrew Longhi Andrew Longhi

Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Technology and Communications Regulation Practice Groups.

Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial…

Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Technology and Communications Regulation Practice Groups.

Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial transactions involving personal information and cybersecurity risk, and responses to regulatory inquiries.

Andrew is Admitted to the Bar under DC App. R. 46-A (Emergency Examination Waiver); Practice Supervised by DC Bar members.

Photo of Jorge Ortiz Jorge Ortiz

Jorge Ortiz is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and the Technology and Communications Regulation Practice Groups.

Jorge advises clients on a broad range of privacy and cybersecurity issues, including topics related…

Jorge Ortiz is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and the Technology and Communications Regulation Practice Groups.

Jorge advises clients on a broad range of privacy and cybersecurity issues, including topics related to privacy policies and compliance obligations under U.S. state privacy regulations like the California Consumer Privacy Act.