These reply comments are submitted in response to the Commission's Twelfth Broadband Progress Notice of Inquiry regarding Section 706's requirement that the Commission determine and report annually on "whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion." The actual facts and marketplace realities clearly show that, based on any fair assessment, broadband is being deployed to all Americans in a reasonable and timely fashion.

 

These reply comments emphasize the need for the Commission to provide a more predictable and less arbitrary analysis tied to everyday consumer broadband use, not imagined use. It also emphasizes the need for the Commission to pursue deregulatory measures - such as those recently proposed by Commissioner Ajit Pai on September 13, 2016, in his Digital Empowerment Agenda - to remove barriers to broadband investment. Aside from deregulatory measures that we have long advocated - and that are along the lines of Commissioner Pai's empowerment agenda - the Commission must not create costly new barriers for providers and consumers by adopting its proposed regulations on business data services and broadband privacy practices. Additionally, the Commission must drop its proposal for a new government-designed video navigation app and new compulsory license that jeopardizes copyrights. Simply put, each of these proposals is an investment-stifler.

 

Broadband deployment data overwhelmingly supports the conclusion that fixed broadband is being timely deployed to all Americans. As of June 2015, 78% of all Americans had access to fixed broadband services at speeds of 50 Mbps download/5 Mbps upload. 65% had access to fixed broadband at speeds of 100 Mbps/10 Mbps. Broadband deployment data also strongly supports the conclusion that mobile broadband is being timely deployed to all Americans. As of July 2015, 97.8% of Americans lived in census blocks served by two or more 4G LTE mobile broadband service providers. 91.5% of Americans lived in census blocks served by three or more LTE providers, and 82.2% of Americans lived in census blocks served by four or more.

 

In the face of overwhelming evidence of rapid broadband deployment, the Commission's 2016 Broadband Progress Report followed a now-predictable but nevertheless unfortunate pattern. The 2016 Report made unjustified negative deployment findings in order to bolster the claimed case for imposing new regulations on competitive broadband services. It relied on idiosyncratic and ad hoc definitions for ascertaining whether broadband is "being deployed to all Americans in a reasonable and timely fashion." The Commission's negative glosses on broadband fail to reflect real-life year-over-year progress. By treating Section 706 as a standalone source of regulatory power triggered by negative broadband deployment findings, the Commission has developed a vested interest in generating perpetual negative findings. This calls the credibility and usefulness of the Commission's 706 inquiries into serious question.

 

So far as practicable, the Commission's Section 706 inquiry ought to be conducted using standards that are predictable and rooted in the terms of the statute. The inquiry should reflect basic rule of law premises that government should act according to a clear set of equally applicable rules that are knowable in advance. Those premises are particularly relevant where, as here, the Commission's inquiry is mandated by law and its outcome triggers agency responsibilities regarding actions to remove barriers to infrastructure investment.

 

The Commission should retain its existing fixed broadband benchmark speed of 25 Mbps download/3 Mbps upload and reject calls for upward changes. Consistent baselines are critical to measuring broadband deployment progress. Any broadband speed benchmarks the Commission relies on should be tied to the capabilities necessary to support services and applications that are widely used by consumers. The Commission should not readjust definitions to suit services that have limited availability and low adoption rates, such as 4K ultra HD streaming video, or based on its speculations that four family members wish to watch a movie at the very same time in different rooms on different devices.

 

The Commission should be cautioned against establishing a 10 Mbps download/1 Mbps upload benchmark for defining mobile broadband deployment. In numerous markets, average speeds exceed - and peak speeds far exceed - 10 Mbps for downloads. Yet many popular online services - such as Netflix and YouTube - require only 5 Mbps or less. Disregarding mobile broadband services capable of delivering HD streaming video presents a distorted picture of the market that ignores consumer habits. Yet even with a 10 Mbps/1 Mbps benchmark, coverage data supports a positive finding that broadband is being timely and reasonably deployed to all Americans.

 

Further, the Commission should no longer construe broadband deployment to mean consumer access to both retail fixed and mobile broadband services. Fixed and mobile broadband are technologically unique but nonetheless competing and increasingly substitutable services. As of June 2015, mobile Internet connections outnumber fixed connections by nearly 2.5 to 1. And between 2013 and 2015, the number of online households relying only on mobile broadband doubled, from 10% to 20%.

 

The Commission should accelerate broadband infrastructure investment by acting consistent with the deregulatory mechanisms set out in Section 706. It should reinvigorate its Section 10 forbearance and Section 11 review powers to provide relief from unnecessary and costly legacy telecommunications regulations. Removing costly rules for competitive voice services markets will enable providers to direct more resources toward next-generation broadband facility upgrades. The Commission should also be unceasing in efforts to increase the supply of commercial spectrum for mobile broadband use. Also, as Commissioner Pai recently suggested and we have previously advocated, it can provide leadership in producing a streamlined policy for deployment of small cell infrastructure, including on federal property. Removing spectrum resource and infrastructure construction barriers will hasten the arrival of the 5G mobile broadband future.

 

Finally, the Commission must not create costly new barriers to broadband investment and deployment. Its proposed price regulations of business data services would reduce incumbent and cable entrant returns on investment by requiring cable operators to lease their facilities to other competitors at government-approved prices rather than market prices. Such regulation undermines incentives for competing providers to invest in advanced broadband facilities. The Commission's proposed privacy regulations would discourage ISPs from offering consumers targeted marketing deals for reduced cost or no cost options for services. By eliminating consumer choice for inexpensive or free services, the proposed privacy regulations would create cost barriers to adoption for price-sensitive consumers, thereby discouraging broadband consumer demand and undermining Section 706's purposes in promoting infrastructure deployment. Removal of burdensome old regulatory barriers in order to even further accelerate broadband investment always should be a primary goal. This holds even if the Commission finds, as it should in this case, that broadband is being reasonably and timely deployed to all Americans.