FCC taps the brakes on fudging US broadband speed amid senator fury

Tell me again why slower internet is a good thing?


America's comms watchdog has extended a comment period on a proposal to downgrade the definition of broadband to a slower speed.

The decision follows a caustic letter [PDF] from 12 Democratic Senators that accuses the FCC of "abandoning further efforts to connect Americans," and signaling "a strong departure from the Commission's mission, while also implying that certain consumers must accept lower-quality connectivity."

Under the proposal, the federal regulator posits that mobile data sent over the air rather than through cables should be considered "broadband." It also puts forward a different way of defining broadband – rather than a set speed benchmark, it suggests moving to a more flexible approach that accounts for the speeds that users actually subscribe to.

On the face of it, the suggestions seem logical. The net effect, however, and the main reason that the proposal is being made at all, is that it would lower the 25Mbps speed benchmark that legally defines broadband speeds in the United States. The FCC is legally obliged to take action to increase the availability of broadband across the nation.

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While fixed line broadband is defined as 25Mbps, mobile broadband is defined at a third of that speed: 10Mbps down and 1Mbps up. Likewise, moving to a definition based on user subscriptions provides a perverse incentive to ISPs to keep average broadband speeds lower.

The 25Mbps down and 3Mbps up benchmark was introduced in 2015 from an earlier level of 4Mbps down – a situation the FCC called "dated and inadequate," especially given that Netflix says 5Mbps is a minimum for its streaming service.

Oh hai Pai

But that decision was opposed by the two Republican FCC Commissioners, Ajit Pai and Michael O'Rielly – not on grounds of logic or technical realities, but because the FCC itself was being "political." With the election of Donald Trump as president, Pai is now chair of the FCC and he and O'Rielly hold a majority vote.

The impact of the benchmark shift was felt almost immediately when the then-chair of the FCC, Tom Wheeler, reported in the regulator's annual broadband report that 34 million Americans did not have access to any broadband providers and just three per cent of the country had a choice of three or more providers for speeds over 25Mbps.

In January 2016, the FCC then concluded that fast internet access was not being deployed to all Americans "in a reasonable and timely fashion" – language which gave the regulator the legal authority to impose new rules on telecom companies in order to force expansion of faster internet access. It sparked a furious industry response.

But before the FCC could impose new rules, Trump entered, Pai took over and the next year's broadband report simply disappeared. It has still not turned up.

The issue of reclassifying broadband to a lower speed has been the cable industry's number two priority after getting rid of existing net neutrality rules, and Pai and O'Rielly have been only too happy to oblige.

Wink wink wonk wonk

Both clearly felt that rolling back the current 25Mbps standard was going to be politically impossible – just think of the headlines: "Government argues for slower internet" – and so the policy wonks have come up with a sufficiently opaque way of achieving the same goal.

By downgrading the definition of broadband, cable companies can continue to offer the exact same services without needing to invest in new, faster networks while at the same time claiming to have expanded broadband. And since the federal regulator will agree (because its report says the same thanks to the new definition), there is very little anyone else can do to force the telcos to stay up to speed with the rest of the world.

It is for this reason that the Democratic Senators argued for a 30-day extension, noting that the proposal contains "potentially significant changes in agency policy" and as such "require greater consideration and debate."

"With the connectivity of millions of Americans potentially at stake, this matter requires more time for careful deliberation in order for stakeholders to weigh in," it argues.

Senators are not the only ones concerned about the proposal. The FCC's Democratic commissioner Mignon Clyburn released a formal statement at the same time as the notice in which she noted she was "extremely skeptical of this line of inquiry," and warned of "a race to the bottom" in which the FCC would "continue to short-change consumers."

The public comment period will now close on September 21, with a subsequent response deadline of October 6. So far there are just over 1,100 filings – a pittance compared to the millions submitted over the effort to pull back net neutrality rules. ®

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