Milton Waddams: “I was told that I could listen to the radio at a reasonable volume from nine to eleven, I told Bill that if Sandra is going to listen to her headphones while she’s filing then I should be able to listen to the radio while I’m collating so I don’t see why I should have to turn down the radio because I enjoy listening at a reasonable volume from nine to eleven.” Office Space (1999).
Section 706 of the Communications Act requires the FCC to annually “determine whether advanced telecommunications capability [i.e., broadband] is being deployed to all Americans in a reasonable and timely fashion.” In its last 5 reports, the FCC has concluded that broadband was being deployed in a reasonable and timely fashion. Now, in its Sixth Broadband Deployment Report (“Sixth Report”), the FCC has concluded that “broadband deployment to all Americans is not reasonable and timely.” (Sixth Report at para. 2 (emphasis in original).)
The primary basis for the FCC’s conclusion is that not all Americans have access to broadband service offering actual download (i.e., to the customer) speeds of at least 4 Mbps and actual upload (i.e., from the customer) speeds of at least 1 Mbps. (Sixth Report at para. 5.) While this is undoubtedly true, the question is whether broadband is being deployed in a “reasonable” fashion, which makes the definition of “reasonable” critical to the analysis.
In the Sixth Report, the FCC has set the standard for “reasonableness” in the Section 706 context so high that it could never be met by industry alone.
In the Sixth Report, the FCC has set the standard for “reasonableness” in the Section 706 context so high that it could never be met by industry alone. The FCC concluded that the “goal of the statute, and the standard against which we measure our progress, is universal broadband availability,” and that “market forces alone are unlikely to ensure that the unserved minority of Americans will be able to obtain the benefits of broadband anytime in the near future.” In other words, because market-based deployment would not result in universal broadband service (which is hardly a surprise), deployment is unreasonable and untimely. This definition of “reasonableness” places reasonable broadband deployment outside the hands of industry and directly into the hands of government.
So, what does this mean for the industry and the FCC? I’ll address that in my next post.