As part of the preparation of its annual “Section 706” report, the Federal Communications Commission recently issued a Notice of Inquiry seeking comments on whether “advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.” Section 706 of the Telecommunications Act of 1996 requires the Commission to revisit this question annually, and report its findings to Congress. If the Commission finds that deployment is not happening in a reasonable and timely manner to all Americans, the Commission must “take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.” The NOI asks broad questions about barriers to deployment, and proposed significant changes to methods used to determine whether or not broadband is available — all of which may impact local governments. It may be important for local governments to participate in the proceeding.
 
Barriers to Entry
The NOI includes broad questions about barriers to entry and obstacles to broadband deployment, and solicits input on other actions the Commission should take to “encourage more expansive and rapid deployment of networks.” The NOI highlights requests for other opportunities “to eliminate other regulatory barriers to infrastructure investment so that companies can deploy, for example, the small cells, the towers, the fiber, and the new services that consumers demand[.]” Local governments should expect industry voices to use this as yet another opportunity to attack local authority and seek broad Commission preemption of local government policies either under section 706, or in pending rulemakings.
 
Other Issues
Under the Obama Administration, in determining whether advanced capabilities were being deployed to all Americans, the Commission treated wireline and wireless broadband services separately because of differences in those services (including cost differences). Based on this analysis, the Commission has consistently found that broadband is not being deployed quickly enough, and has taken actions to remedy this. This includes funding broadband deployment through the Universal Service Fund, reforming the Lifeline program to help low-income consumers access the Internet, and adopting net neutrality rules to protect the Internet ecosystem as it grows. Commission Chairman Ajit Pai dissented from previous reports adopted under the previous administration, citing objections to methodology.
 
The Commission now proposes to determine “whether some form of advanced telecommunications capability, be it fixed or mobile, is being deployed to all Americans in a reasonable and timely manner.” This may result in substantial expansion of areas deemed “served” and a corresponding reduction in the Commission’s use of its Section 706 authority to promote deployment.
 
The Commission proposes adopting a mobile broadband speed benchmark of 10 Megabits per second downstream and 1 Mbps upstream, while maintaining the existing fixed benchmark of 25 Mbps down/3 Mbps up. If those benchmarks were adopted, and the Commission treats wireless as a substitute for wireline, it is entirely possible that rural communities previously considered not adequately served may find that the Commission will now treat them as receiving adequate broadband services. The Commission may consider adopting metrics similar to those applied in the recent Mobility Fund Phase II proceeding to set performance expectations for future federally subsidized rural wireless expansions.
 
In determining whether deployment is proceeding apace, the Commission also asks about the merits of focusing on year-over-year progress, rather than the current method of examining whether or not all Americans have access.
 
Potential Impacts
Should the Commission find that broadband is not being deployed quickly enough due to local entry barriers, it could use those findings to preempt local control over rights of way and publicly owned property. However, Pai consistently criticized previous section 706 reports that found broadband was being deployed slowly, and that used findings of slow deployment to justify, for example, net neutrality regulations. It may be that the current Commission will be inclined to find that advanced broadband is being deployed at a reasonable rate. Nonetheless, the Commission might use the 706 report’s findings on barriers to entry to independently justify further preemption in other pending dockets where local control over rights of way and wireless siting is at issue. That will make it important for local governments to review and respond to any claims of “barriers to entry” that are filed in the section 706 docket.
 
The findings in the section 706 report may also have implications, among other things, for net neutrality regulations, and for rules governing transition from the traditional switched telephone network to new IP networks (transition issues that concerned the previous administration may be of lesser concern if one assumes that adequate alternative services are widely available and being adopted). Those rules are of particular concern to rural communities.
 
Comments on the Commission’s Notice of Inquiry are due Sept. 7, and reply comments are due Sept. 22, but there are pending motions to extend the initial and reply deadlines.

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