Sept. 19, 2016
Recently, we filed FCC comments arguing broadband is not being deployed to all Americans in a reasonable and timely manner under so-called “Section 706.” Section 706 of the Telecommunications Act of 1996 requires an annual inquiry by the FCC to determine whether “advanced telecommunications capability” (colloquially, “broadband”) is being deployed to all Americans in a reasonable and timely manner. If the FCC determines that the answer to this question is “no,” the statute then grants the FCC the authority to take regulatory action to encourage the deployment of broadband. This annual inquiry is known as the “Broadband Progress” inquiry.
But to determine whether “broadband” is being deployed reasonably, the FCC has to define what “broadband” is. The definitions used in the Broadband Progress inquiries have evolved significantly in their nearly-twenty-year history. In the late 1990s, the FCC defined “high-speed broadband” as a 200 kbps connection (both download and upload). The FCC has subsequently increased the benchmark several times:
2008: “basic broadband” is a connection with a 768 kbps download and 200 kbps upload.
2010: increased to 4 mbps download and 1 mbps upload.
2015: increased to 25 mbps download and 3 mbps upload.
We argue in our comments that the benchmarks should be increased again to 50 Mbps download/20 Mbps upload. The increase is necessary with so many new apps and services being released that require high throughput (4K television, video games, telehealth services, virtual and augmented reality), and with consumers increasingly using their upload capability for things like social media and cloud storage. Also, the National Broadband Plan anticipated a 50/20 benchmark by 2015.
What the FCC’s speed-focused definitions miss, however, are important non-speed metrics, such as latency (the time it takes a packet of data to travel to another server on the network), packet loss (the percentage of data that is lost in transmission), and jitter (the variance in latency). With high latency, packet loss, or jitter, a connection that meets a speed requirement may nonetheless be slow or unusable as packets get lost or congested. We urge the FCC to implement a soft latency metric of 50 ms that would then trigger an investigation into the other metrics to determine whether the connection should count as “advanced.”
How the FCC collects data on and measures broadband connections is a major question underpinning the Broadband Inquiry, and one that is of particular relevant for us at OTI. Accurate broadband measurements are imperative for the FCC’s Section 706 analysis*. We argue the FCC should ensure that its measurements reflect the consumer’s average experience rather than a theoretical high speed on the ISP’s best day. Some speed tests, such as Ookla’s Speedtest.net, make routing decisions that may not reflect actual user experience. Measurement Lab, a research consortium of which OTI is a partner, hosts its own test called Network Diagnostic Test that more accurate reflects user experience. (See OTI’s recent paper, Getting Up to Speed, for a deep-dive on broadband measurement and a list of best practices.)
The FCC also asks whether data caps should factor into the Section 706 analysis, and if so, how. Data caps, which take many different forms including caps with overage charges or caps that throttle speeds, disincent the use of an Internet connection. We argue that data caps should factor into a Section 706 analysis. All the capacity in the world means nothing if consumers are cut off from using it to its fullest potential. We urge the FCC to more broadly investigate the use of data caps on wired and wireless networks, but to also consider limits on the use of data caps in this proceeding. Wired connection caps are unjustified on technical and economic grounds, and networks where such caps are present should not be considered “advanced.” Data caps over wireless connections, however, may be justified in some instances, and we argue any mobile network with a wireless data cap below 5 GB per month should not be considered “advanced.”
Section 706 requires the FCC make a decision within 6 months of its release of the Notice of Inquiry, which gives it until approximately March 2017 to issue an Order that determines whether advanced broadband service is being deployed in a timely matter. We hope the FCC recognizes the gains in Internet services and speeds offered and implements the suggestions we made. With any luck, your connection may improve as a result.
* The FCC currently relies on both self-reporting by Internet Service Providers (ISPs) via “Form 477” and the FCC’s measurement tools, including Measuring Broadband America and a mobile app called FCC Speed Test for Android and Apple.