Carr, Simington, Others Talk Broadband, Edge Regulation at FSF Event

FCC regulations on broadcasting, telephony and accessibility will “become increasingly hollow shells of themselves” unless Congress decides to what degree the FCC should “move into the app ecosystem,” said Commissioner Nathan Simington at this week’s Free State Foundation Conference. Panelists at the event, including Commissioner Brendan Carr, also discussed broadband deployment and definitions, and the agency’s spectrum authority. The FCC “isn’t currently regulating the edge space, but that doesn’t have to last forever,” Simington said.

Carr condemned the “pluto-ing” of the FCC on tech and technology, citing the agency’s recent loss of spectrum authority. The FCC should play a lead role in freeing up spectrum to maintain U.S. global wireless leadership, he said. Ceding that role to authoritarian regimes would mean “the future looks a lot worse” for the U.S., he said. Congressional action could resolve concerns about the FCC coming into conflict over spectrum authority, said Simington.

On other conference panels, several broadband experts raised concerns about potential overbuilding through the broadband, equity, access and deployment program and other federal funding. "We have a big problem on overbuilding," said former FCC Commissioner Mike O'Rielly. There's also the issue of ensuring the FCC's broadband maps adequately reflect where broadband is and to ensure money is "going to the places where it needs to go," said Public Knowledge CEO Chris Lewis. There should be a focus on delivering broadband to the unserved, said Rick Chessen, NCTA senior vice president-law and regulatory policy. "If we don't close this digital divide once and for all with the money that we have then shame on us," Chessen said.

Setting quality standards for broadband is "important to make sure that households have what they need," Lewis said. O'Rielly raised concerns about technologies other than fiber being "ignored," saying it's "going to have an impact on the next 10 or 15 years of technological development." Clint Odom, T-Mobile vice president-strategic alliances and external affairs, noted that new mid-band spectrum is "dead in the water," saying it can "achieve speeds comparable to fiber optics so we need to get this fixed."

The affordable connectivity program should focus on those without connectivity rather than subsidizing existing internet users, said both Carr and Simington. The first step to deciding the program’s future should be gathering “hard data” on who's benefiting from it, Carr said. The BEAD program is overly focused on fiber, Carr said. There should be room for scenarios “where fixed wireless makes sense,” he said. “I don’t think fiber to the home should be the default model going forward.”

Any technology that can provide speeds and latency needed for common, everyday usage needs to be considered “broadband” for program eligibility and in policies, Duke University economics professor Michelle Connolly said. The former FCC chief economist said the FCC increased the broadband definition over time as a means of excluding satellite coverage, which didn’t matter when latency issues made satellite not relevant. She said that’s changing due to the emergence of low earth orbit constellations like SpaceX’s Starlink. She said common internet usage like Netflix or Zoom group calls generally don’t require anything above 15 Mbps downloads, even as there’s a push to move the definition of broadband from 25/3 Mbps to 100/5 Mbps or 100 Mbps symmetrical. Increasing the definition of speed lets government say there’s a higher level of unserved and underserved populations, she said. But it also raises the likelihood that government spending will go to places that have perfectly good internet service that nonetheless doesn’t qualify as broadband, she said. She said the commission rejected SpaceX’s Rural Digital Opportunity Fund Phase I auction long-form application (see 2208100050) because the agency realized “it wouldn’t look good” if it ended up giving a company money to provide service where it already provides service.

The U.S. Supreme Court’s major questions doctrine established by the 2022 West Virginia v. EPA would likely derail attempts to bring back Title II net neutrality rules, said Carr. The doctrine -- which argues that Congress can’t delegate authority over questions of major economic or policy consequence to agencies -- “fundamentally changes the litigation risk and likelihood of that being sustained on appeal,” Carr said. The case would be “ultimately fatal toward efforts to go back down this path,” he said.