In one of his last acts as Federal Communications Commission chairman, Ajit Pai decided to stick with the FCC’s 6-year-old broadband standard of 25Mbps download and 3Mbps upload speeds.
The decision was announced yesterday in the FCC’s annual broadband-deployment report, released one day before Pai’s departure from the FCC. As in all previous years of Pai’s chairmanship, the report concludes that the telecom industry is doing enough to extend broadband access to all Americans—despite FCC Democrats saying the facts don’t support that conclusion.
Pai’s report said:
We find that the current speed benchmark of 25/3Mbps remains an appropriate measure by which to assess whether a fixed service is providing advanced telecommunications capability. We conclude that fixed services with speeds of 25/3Mbps continue to meet the statutory definition of advanced telecommunications capability; that is, such services “enable users to originate and receive high-quality voice, data, graphics, and video telecommunications.”
Under US law, the FCC is required to determine annually whether “advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion” and to “take immediate action to accelerate deployment” and promote competition if current deployment is not “reasonable and timely.” Maintaining the 25/3Mbps standard for home-Internet services, which hasn’t been changed since January 2015, makes it easier for Pai to give the telecom industry and FCC a passing grade on the annual report. Pai’s annual reports also evaluated deployment of mobile Internet at different speeds, but he didn’t adopt a single speed benchmark for determining whether a mobile service is “advanced.”
FCC Democrat Jessica Rosenworcel, who could be the commission’s next chair, has repeatedly argued that the FCC should adopt a higher speed benchmark for home-Internet service. “With so many of our nation’s providers rolling out gigabit service, it’s time for the FCC to adjust its baseline upward, too,” she said last year, calling for a 100Mbps download standard and an upload standard that’s higher than 3Mbps.
“At present, our standard is 3 megabits per second,” she said. “But this asymmetrical approach is dated. We need to recognize that with extraordinary changes in data processing and cloud storage, upload speeds should be rethought.”
Pai: ISPs are doing enough despite rural gaps
The report released yesterday concluded that “advanced telecommunications capability is being deployed on a reasonable and timely basis” and that the “rural–urban divide is rapidly closing; the gap between the percentage of urban Americans and the percentage of rural Americans with access to 25/3Mbps fixed broadband has been nearly halved, falling from 30 points at the end of 2016 to just 16 points at the end of 2019.”
In a press release, Pai played up his alleged role in expanding broadband access, saying, “from my first day as Chairman, the FCC’s top priority has been closing the digital divide.” In addition to expansion of home-Internet services, he pointed to FCC data showing that “at the end of 2019, mobile providers offered 5G service to approximately 60 percent of Americans, a figure that is substantially higher today.”
Pai today also released a list of what he considers to be his accomplishments as FCC chairman, including “Restoring Internet Freedom”—his phrase for deregulating the broadband industry and eliminating net neutrality rules.
Pai’s victory laps are “unseemly”
FCC Democrats objected to Pai finalizing the broadband-deployment report yesterday instead of letting the task pass to the Biden administration.
“Over the last two years, I have decried the unwarranted victory laps these reports seem to spawn,” FCC Commissioner Geoffrey Starks said. “Now—as tens of millions of Americans find themselves unable to access online school, work, and healthcare during the pandemic—patting ourselves on the back is particularly unseemly.”
Despite Pai’s rosy conclusions—and the inaccuracy of FCC data, which tends to undercount Americans without broadband access—the report has evidence to back up Starks’ concerns about the continuing digital divide. As of year-end 2019, only 4.4 percent of Americans lived in areas without access to 25/3Mbps home-Internet service, but the data for rural and tribal areas paints a much uglier picture. At 25/3Mbps home-Internet speeds, there’s no coverage for 17.3 percent of rural areas and no coverage for 20.9 percent of tribal areas. Overall, there are about 65 million people in the rural areas in FCC data and about 4 million people in tribal areas.
Nearly 99 percent of urban areas had 25/3Mbps access, and 95 percent of urban areas had access even at 250/25Mbps speeds. But only 66.8 percent of rural areas and 63.7 percent of tribal areas had access to 100/10Mbps speeds, while 55.6 percent of rural areas and 49.6 percent of tribal areas had access to 100/10Mbps speeds:
This data is based on census blocks and counts an entire census block as served even if only one home in the census block can get service. Pai’s FCC began the process of collecting geospatial data from ISPs to improve accuracy, but that task will be finished under whomever President Biden chooses to serve as FCC chair.
Evidence contradicting Pai is “all around us”
Rosenworcel said that Pai’s report obscures “the hard truth that the digital divide is very real and very big” and that “it confounds logic that today the FCC decides to release a report that says that broadband is being deployed to all Americans in a reasonable and timely fashion.”
The evidence contradicting Pai’s conclusions is “all around us,” Rosenworcel continued:
There are people sitting in parking lots using free Wi-Fi signals because they have no other way to get online. There are students who fall in the homework gap because the lack the high-speed service they need to participate in remote learning. There are mayors in towns across the country clamoring for better broadband so their communities have a fair shot at digital age success.
When Biden defeated Trump in the election, Congressional Democrats called on Pai to follow the past practice of stopping “work on all partisan, controversial items” during the transition period. Pai never committed to doing so—despite taking the opposite stance four years earlier when then-Chairman Tom Wheeler complied with an equivalent request from Congressional Republicans.
Starks argued that yesterday’s report was too controversial to be approved when the FCC is about to change hands from Republicans to Democrats. Starks said:
I am compelled to note that this Report should not have been released at all. After the election in November, congressional leaders wrote to Chairman Pai to demand that the Commission stop work on all partisan and controversial items during the presidential transition. This item is both.
Nonetheless, Chairman Pai declined to withdraw the Report as Commissioner Rosenworcel and I requested. His rationale—that the Report has no legal significance—is plainly inconsistent with the Telecommunications Act, which directs the Commission to take “immediate action” if it determines that advanced telecommunications capability is not being deployed to all Americans on a reasonable and timely basis. That determination should have been left to the next administration, which could have addressed the question before the statutory deadline.
“Haste and waste” in FCC subsidies
Pai has continually claimed that his deregulatory agenda boosted broadband deployment, despite evidence to the contrary found in statements ISPs made to investors and recent cuts in big ISPs’ network spending. Pai has also touted data showing broadband progress even after FCC staff warned it was based on incorrect filings by an ISP.
Even Pai’s most direct efforts to close the digital divide have been controversial. Pai replaced the FCC’s Connect America Fund with a similar Rural Digital Opportunity Fund and recently awarded $9.2 billion worth of funding that will be distributed over 10 years. But instead of waiting for more accurate broadband data to better target the funding to areas that need it most, Pai went ahead with the funding distribution weeks before his departure from the FCC.
The subsidies are supposed to go to “high-cost” areas where ISPs would not have a good business case for deployment without government funding. But consumer-advocacy group Free Press has been examining the funding awards in a series of reports, saying in one report that Pai’s program is “subsidiz[ing] broadband for the rich.”
Some funding went to census blocks “located inside of the service footprints of Comcast” and other ISPs, places with little demand for broadband “either because no one lives or even works there, or because for the most part they have no residential properties and the few businesses there may not need advanced services,” Free Press wrote in another analysis yesterday. Pai’s broadband legacy is one of “haste and waste,” the group said.
A bipartisan group of 157 members of Congress yesterday sent a letter urging Pai and other FCC commissioners to make sure the funds aren’t spent improperly:
We urge the FCC to validate that each provider in fact has the technical, financial, managerial, operational skills, capabilities, and resources to deliver the services that they have pledged for every American they plan to serve regardless of the technology they use.
Americans “need an FCC that fights for them”
Advocates for stricter regulation of broadband providers are happy to see Pai leave. In four years as chairman, Pai “embraced a radical agenda that rolled back consumer protections, rubber-stamped corporate wish lists, and even weakened his own agency’s legal authority,” Senior Counsel Joshua Stager of New America’s Open Technology Institute said yesterday, referring to Pai’s decision to abandon the FCC’s Title II regulatory authority over broadband providers. “We look forward to turning the page on this chapter of FCC history and urge new leadership to set a new course. The American people still need an FCC that fights for them.”