This is Part 2 in a two-part series discussing comments submitted to the FCC in response to a petition filed by Fiber-To-The-Home Council proposing a new Gigabit Community Race to the Top program.
In Part 1 of this post, I focused mainly on the complaints filed by the National Cable & Telecommunications Association (NCTA) against FTTHC’s Race to the Top proposal. While there was nothing new in those arguments (we see them all the time from industry spokespeople), I wanted to highlight their errors in light of this promising proposal to promote community networks. This post will focus on some of the more technical arguments which further demonstrate the industry’s false assertions.
NCTA attacks the FCC’s authority to implement Race to the Top, claiming that neither Section 254 (addressing universal service) nor Section 706 (addressing “advanced telecommunications capability”) of the Telecom Act authorize such a program.
The cable lobby’s argument against Section 254 authority hinges on the statute’s requirement that universal service funds only support services in small and rural markets that are “reasonably comparable” to those available in the rest of the country. Therefore, NCTA argues, Race to the Top would “enable a small number of communities to receive faster broadband speeds than the vast majority of Americans in urban areas have chosen to purchase.”
NCTA essentially believes its members get to dictate American broadband policy. If the majority of Americans “choose to purchase” only single-digit Mbps (megabits-per-second) broadband because that’s the only affordable option in their area, then the FCC cannot subsidize faster networks, anywhere. Or so argues the NCTA.
Even more tortured is the NCTA’s argument against the FCC’s Section 706 authority to implement Race to the Top. Section 706 instructs the FCC to regularly assess the deployment of “advanced telecommunications services,” and when it finds that such services are not rolling out fast enough, the FCC must make efforts to accelerate deployment.
NCTA thinks it’s clever to point out that the FCC “has never defined ‘advanced telecommunications capability’ for purposes of Section 706 to mean gigabit services” and it “has rightly made no finding that the deployment of gigabit services is not reasonable and timely.” But the reason the FCC has not made such definitions or findings is because they are self evident.
The last three FCC Broadband Progress Reports have found that advanced telecommunications services, defined as at least 4 Mbps down and 1 Mbps up (4/1), are not being deployed in a timely manner. If 4/1 broadband is rolling out too slowly, then surely gigabit broadband is rolling out even slower. As a matter of simple logic, accelerating gigabit broadband deployment will also accelerate 4/1 broadband deployment (once fiber is installed, network operators can choose whatever speed they want). Therefore, it follows that if the FCC has the authority to accelerate 4/1 broadband deployment under Section 706, it likewise has the authority to accelerate gigabit broadband deployment.
A separate attack on the FCC’s authority was advanced by the Rural Broadband Association (NTCA), which consists of competitive local exchange carriers that already qualify as eligible telecommunications carriers (ETCs). NTCA argues that the FCC is forbidden by law from granting universal service funds to non-ETCs, which is technically true. Aside from this complaint, NTCA fully supports Race to the Top. In other words, NTCA supports a Race to the Top program that only subsidizes ETCs, like its members.
NTCA’s argument disregards one of the FCC’s key powers - forbearance. Forbearance allows the FCC to selectively suspend certain regulations when it finds that the regulation would do more harm than good. Since Race to the Top is based on a competitive bidding process, unnecessarily restricting the number of eligible bidders would make the program less competitive, more expensive and ultimately less effective. So the FCC would certainly be justified in suspending the ETC requirement for Race to the Top, especially since the program has its own eligibility requirements to ensure funds are used effectively.
In conclusion, FTTHC’s Gigabit Community Race to the Top proposal holds much promise precisely because it would be open to a wide variety of applicants including nonprofits and municipalities, and because it focuses on last-mile fiber networks. We optimistically look forward to the FCC opening a formal rulemaking proceeding so we can address the weak opposing arguments discussed here.