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.