Amid ongoing policy debates on issues like how to protect net neutrality or how to close the digital divide, it’s more important than ever that we have accurate data on how broadband is deployed across the country. Yet many consider the Federal Communications Commission’s existing data to be inaccurate and unreliable.
With the FCC now having launched its 13th annual inquiry into the status of broadband deployment in America, it’s time to recognize we won’t get better deployment data from the commission until we take the politics out of broadband progress reports.
By design, the FCC is independent. An outgrowth of the technocratic mindset of the early 20th century’s Progressive Era, the agency deliberately was insulated from public opinion to ensure its decisions would be driven by science, rather than politics. FCC commissioners can’t be voted out or removed from office without cause, no matter how unpopular their actions are with the general public, members of Congress or the administration.
Yet despite that institutional independence, the FCC’s actions often have been clouded by political concerns. While the vast majority of FCC staff are low-level, nonpartisan bureaucrats, bureau chiefs and the commissioners themselves are political appointees. Even without the threat of at-will removal, these appointees remain under strong pressure to toe the party line and adopt policies favored by the politicians who appointed them. Whether or not appointees are consciously aware of such political influence, recent FCC actions reflect an increasingly partisan agenda. Broadband progress reports are no exception.
Section 706 of the Telecommunications Act of 1996 requires the FCC to conduct annual assessments of broadband deployment in the United States and to determine whether broadband service “is being deployed to all Americans in a reasonable and timely fashion.” If the commission determines that it is not, the law requires that it “take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”
Unfortunately, we simply can’t trust the technocrats at the FCC to deliver accurate broadband progress reports on a consistent basis, as all of the political incentives favor manipulation and sleight of hand. Administrative law grants the agency substantial discretion both to define what constitutes “broadband” and to determine whether a given rate of deployment is “reasonable and timely,” so it can manufacture whatever outcome it’s seeking, regardless of what the deployment data actually say. This is a major problem.
It’s not hard to imagine how political appointees within the FCC might manipulate the Section 706 process to serve a partisan agenda. For example, if most commissioners want to impose new regulations on broadband providers, they can simply find that deployment isn’t proceeding “in a reasonable and timely fashion,” and assert the adopted regulations will either remove barriers to investment, promote competition or both. On the other hand, if the majority wants to repeal existing broadband regulations, they can reach the same finding and assert the regulations themselves are “barriers to infrastructure investment” and that their repeal will promote deployment and competition.
The opportunity to work backward and manipulate deployment data to support a predetermined outcome is simply too good to resist. A negative Section 706 finding was used to support the FCC’s first Open Internet Order, back in 2010, as well as the more recent 2015 Open Internet Order. And if history is any guide, FCC Chairman Ajit Pai and his fellow Republican appointees may well use another negative finding to support repealing the 2015 order as part of their “Restoring Internet Freedom” proceeding.
Just as bad facts make for bad case law, bad data make for bad regulatory policy. If we want our telecom regulator to deliver accurate reports about the state of broadband deployment, we need to take the politics out of broadband progress reports. This means removing the “finding” from Section 706 that triggers further commission action and authority.
As Congress considers further telecom legislation — in the context of FCC reauthorization, net neutrality or a full-scale update to the Communications Act — it should re-examine Section 706 and consider implementing this fix. Maybe then we could finally trust the numbers the technocrats deliver.
Tom Struble is a technology policy manager with the R Street Institute.
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