On August 5, the Federal Communications Commission voted to kick off its annual review of the pace and cadence of broadband deployment. The FCC is required to annually assess whether broadband "is being deployed to all Americans in a reasonable and timely fashion" by section 706 of the Telecommunications Act of 1996, and the report from this proceeding will be another in a series of updates the Commission has provided over the years. However, in this iteration, the approach the FCC is taking will be "reoriented" to be "technology neutral and holistic" [by being less holistic, of course] in assessing the digital divide in the United States. The Notice of Inquiry (NOI) provides insight into what exactly that means for Chairman Brendan Carr's FCC. Here is a brief overview of the questions the FCC is asking about the telecommunications landscape as the Commission develops its annual report.

A Singular Focus on Broadband Availability

In the 2024 broadband deployment report, the FCC, for the first time, considered broadband affordability, adoption, availability, and equitable access for its determination. In the 2025 proceeding, the FCC is proposing to return to previous approaches and only consider availability. The FCC seeks:

• Data and other evidence reflecting the state of broadband deployment and availability;
• The introduction of new issues concerning the availability of advanced telecommunications capability;
• Recommendations on new ways to measure deployment and evaluate availability; and
• Suggestions on how to remove barriers to infrastructure investment and, specifically, regulatory barriers to deployment, expansion, competition, and technological innovation.

The FCC suggests that the Supreme Court's decision in Loper Bright Enterprises v. Raimondo holds that if a statutory reading “is not the best, it is not permissible.” The Loper case overruled the 40-year-old Chevron deference doctrine, which found that the courts were required to defer to an agency’s reasonable interpretation of an ambiguous statute that the agency administered. In this new proceeding, the FCC turns to a stricter interpretation of its broadband deployment assessment requirements under Section 706 of the Telecommunications Act.

Specifically, the FCC says that "the section 706 inquiry should singularly focus on the availability of advanced telecommunications capability, as measured through the deployment of broadband” and that “narrowing the focus of our inquiry will provide a more objective and accurate view of the state of advance telecommunications capability in the United States and, correspondingly, of our progress in closing the digital divide.”

Following the FCC's vote, Commissioner Anna Gomez released a statement regarding the NOI:

Commissioner Gomez added that "the law does not require [the FCC] to view broadband availability with one eye closed and the other one half-open," and cited the Infrastructure Investment and Jobs Act as legislation enacted to broaden the FCC's approach. On the U.S. Commerce Department's revisions to the Broadband Equity, Access and Deployment Program in tandem with the FCC's NOI, Commissioner Gomez said, "one must wonder if this is a coordinated effort to roll out the 'Mission Accomplished' banner as millions remain without access to a fast, reliable, and affordable way to participate in the main aspects of modern life."

Defining “advanced telecommunications capability” and when it should be measured

The FCC goes out of its way to make a distinction between “advanced telecommunications capability” and “broadband” that previous inquiries have not.

For simplicity in past inquiries, the FCC has sometimes used the term “broadband” to refer to “advanced telecommunications capability.” However, “advanced telecommunications capability” is a statutory term with a definition that is narrower than the term “broadband."¹ Thus, while all services providing advanced telecommunications capability are “broadband,” not all broadband services provide advanced telecommunications capability.

The FCC seeks comment on the relationship between various technologies, as well as appropriate benchmarks for determining what broadband service constitutes advanced telecommunications capability.

In prior reports, the FCC has concluded that both fixed and mobile broadband services meet the definition of advanced telecommunications capability, and that the services are not full substitutes. The FCC now asks if these services, separately or together, offer a complete understanding of “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.”

Commissioner Gomez comments on this and the NOI's "tech neutral" stance:

The FCC also intends to focus the inquiry on whether advanced telecommunications capability “is being deployed,” rather than whether it already has been deployed. Through this approach, the FCC is considering “incremental progress” rather than a “binary interpretation of the threshold for issuing a passing or failing grade.”

Assessing Broadband Speeds

The FCC seeks comment on the 100 Megabits per second (Mbps) download and 20 Mbps upload standard for fixed broadband adopted in the 2024 report and proposes to eliminate the FCC’s long-term goal of 1000/500 Mbps since it “risks skewing the market by unnecessarily potentially picking technological winners and losers.” The FCC says that "assuming a long-term goal of 1,000/500 Mbps may be unreasonably prejudicial to technologies such as satellite and fixed wireless that presently do not support such speeds."

For wireless, specifically 5G, the FCC asks about retaining the 35/3 Mbps standard and whether the Commission should continue to collect data for both stationary outdoor coverage as well as in-vehicle mobile coverage. The FCC also asks if it should continue to assess 4G LTE coverage.

For schools and classrooms, the FCC proposes to retain the 1 gigabit per second (Gbps) download per 1,000 students standard, but not adopt a long-term goal because (again) long-term goals risk skewing the market by unnecessarily potentially picking technological winners and losers.

According to Commissioner Gomez, the 100/20 Mbps standard "[moves] us away from a measurement of mediocrity toward a respectable floor where we can build momentum for future innovation and continued global leadership," and the long-term 1 Gbps goal "[sets] this country apart in ways that signaled a forward-looking approach to global technological competitiveness."

Advocacy groups Public Knowledge, the National Digital Inclusion Alliance (NDIA), and X Lab called on the FCC to measure all aspects of the digital divide in their NOI. The groups, in a joint statement on the Inquiry, echoed Gomez's thoughts on potential dangers to connectivity associated with changing long-term federal goals in tandem with changes to the BEAD Program:

Data Sources and Analysis

The FCC's 2024 report used the Commission’s Broadband Data Collection (BDC)––established by the Broadband DATA Act––for the first time as the primary data source for analyzing fixed availability. In the notice, the FCC lauds the BDC for collecting more granular, location-level data on broadband availability and ensuring the the BDC data are subject to review and challenge from consumers, state, local, and Tribal governmental entities, and other stakeholders, as well as the Commission’s own verification and audit efforts, "all of which help to improve the accuracy of the provider-reported availability data."

The FCC proposes to again use the BDC as the primary data source to measure physical deployment of fixed broadband services for the 2025 report and seeks comment on this action, as well as whether or not the FCC should use other data sources in addition to––or instead of––the BDC.

The FCC poses a number of other questions relating to data and analysis in its NOI:

• Should the FCC include satellite services in this inquiry?
• Should the FCC use data from its Broadband Funding Map in this proceeding?²
• Can the FCC, and should the FCC, use E-Rate program data in this inquiry?
• For doing population estimates, should the FCC continue using Broadband Serviceable Location Fabric data?
• Should the FCC continue to use Census Bureau data for the determination of urban v rural areas?
• Should the FCC use American Community Survey 5-Year estimates to determine average per capita income?
• The FCC seeks comment on Tribal data available for the report:
  • What definitions of Tribal lands should the Commission use for the purposes of the next report?
  • Are there other sources of data that the Commission could use to examine the deployment of advanced telecommunications capability on Tribal lands? If so, how should they be incorporated?
  • What manner of presenting data regarding Tribal lands is most effective, and is there a different or further disaggregated methodology that would be useful and practical?

FCC Actions to Accelerate Broadband Deployment

The FCC asks a number of questions about its own actions to accelerate broadband deployment:

• How effective have the FCC’s efforts been?  
• What additional efforts should it undertake?  
• Are there currently any regulatory barriers impeding broadband deployment, investment, expansion, competition, and technological innovation that the FCC should consider eliminating?  
• Are there particular actions the FCC could undertake that may also serve the Commission’s long-standing goal of accelerating the transition to all Internet protocol networks?   
• Are there modifications to Universal Service Fund programs that would be helpful to accelerate deployment of advanced telecommunications capability, including changes that could make them more cost-effective and efficient?  
  • For example, are there changes that would help ensure that supported providers receive no more support than is necessary, or that the programs would select the most efficient provider of advanced telecommunications capability?  
• Are there steps that the FCC could consider taking to reduce waste, fraud, and abuse?
• What additional efforts should the FCC undertake, if any, to encourage more private sector investment in broadband buildout?  
• Are there a set of actions or policies that the FCC could and should undertake to close the digital divide once and for all and to ensure that the United States remains a global leader in the provision of ubiquitous access to high-speed internet?  
  • If so, what are they?  
• While the results of increased private investment in broadband deployment are often clear, is there any value in measuring such investment?  If so, how do commenters suggest the FCC do this?

Timeline

Comments are due 30 days after the NOI's publication in the Federal Register, and reply comments are due 15 days after that initial comment deadline. The FCC’s final 2025 report must be issued within 180 days after release of the Notice of Inquiry, so sometime in February 2026 if the NOI is published in the Federal Register this month.

Notes

1. See 47 U.S.C. § 1302(d)(1) (“The term ‘advanced telecommunications capability’ is defined, without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.”).
2. The Broadband Funding Map includes enforceable broadband commitments for programs run by the FCC, NTIA, USDA, and Treasury. 

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