The Partisan Divide: Looking Back at Broadband Policy in 2018

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Friday, January 11, 2019

Weekly Digest

The Partisan Divide: Looking Back at Broadband Policy in 2018

 You’re reading the Benton Foundation’s Weekly Round-up, a recap of the biggest (or most overlooked) telecommunications stories of the week. The round-up is delivered via e-mail each Friday.

Round-Up for the Week of January 7-11, 2019

Robbie McBeath

Upon reflection, it is easy to see that 2018 was a year of widening divides. Communications policy was no exception. In the midst of a partial government shutdown, we take a look at how partisan division at the Federal Communications Commission is shutting down progress towards closing the digital divide. 

The Partisan Divide at the FCC

In December 2016, Ajit Pai (in)famously said, “We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.” Pai, then a commissioner at the Federal Communications Commission, continued, “Our approach will be not zero regulation, but light-touch regulation, rules backed by long-standing principles of competition law.”

Two years later, now-FCC Chairman Pai is still emphasizing his regulatory philosophy. Last month he said:

“[T]he FCC should do everything it can to ensure that its rules reflect marketplace realities and basic principles of economics. The public interest is best served when the private sector has the incentives and freedom to invest and create. Instead of micromanaging markets, government should eliminate unnecessary barriers that can stifle new discoveries and services. And, in particular, the government should aim to minimize regulatory uncertainty, which can deter long-term investment decisions.”

Chairman Pai’s “light-touch,” deregulatory approach is touted as a way to unleash innovation from burdensome regulations and allow the free market to dictate communications policy. Democratic policymakers tend to argue that this approach produces policy that favors the interests of incumbent industry players, often at a cost to consumers and new competitors.  

On June 1, 2018, we learned a bit about how far Pai’s fellow-Republican FCC Commissioner Michael O’Rielly is willing to go to cut back on consumer protections. In an FCC blog post, Commissioner O’Rielly highlighted the pervasiveness of the “app economy” and its large-scale investments to argue that there are just two options for policymakers: 1) support greater deregulation of FCC regulatees that must compete with these services, or 2) advocate for new Congressional powers to regulate these services.

His conclusion: “If an existing FCC regulatee is in the voice, video, or data business, they should be knocking down our doors to demand fundamental and colossal relief.” To clarify: A sitting commissioner invited every company regulated by the FCC to seek release from consumer protection obligations. 

Many policymakers advocating for the public interest disagree with Commissioner O’Rielly’s view. For example, Benton Senior Fellow Gigi Sohn offered a new policy framework for an open internet ecosystem this year that sharply differs from the deregulatory philosophy of the Republican majority at the FCC. “Policymakers...should be wary of calls for ‘regulatory parity,’ that is, regulating broadband providers and online platforms exactly alike,” she wrote. “These industries serve very different roles in the Internet ecosystem, have different relationships with consumers, and...the problems that affect these industries are, for the most part, very different.”

But, 2018 was a year in which Chairman Pai operated with a Republican majority on the FCC, allowing his light-touch approach to carry the day. 

FCC Partisanship: An Extension of the Divide in Congress

In general, Chairman Pai’s deregualtory approach received support from Republicans in Congress. In July, after a much-delayed House FCC oversight hearing, I wrote, “Republican lawmakers and policymakers have been satisfied with the ‘light-touch’ deregulatory approach to communications policy the Pai FCC has implemented. Democrats disagree, arguing the policies have hurt the American people, often at the benefit of corporate interests.”

"The Commission has failed to uphold the public interest and is favoring corporations.” -- Rep. Mike Doyle (D-PA)

The partisan regulatory divide at the FCC is just a reflection of the larger political divides in Congress. It was a theme that played out over several Congressional hearings in 2018 on broadband availability. 

Recapping a March Senate Commerce hearing on broadband investment, I wrote, “Democrats argue that the problem [of lack of broadband access in rural areas] needs substantial investment from the Federal government. Republicans argue that deregulation will make it more attractive for providers to extend their networks. For now, the levers of power are controlled by Republicans, so at the FCC and in Congress, deregulation is the solution du jour.”

After the August Senate FCC oversight hearing, I wrote that Senate Commerce Committee Chairman John Thune’s (R-SD) "opening statement praised the FCC’s approach to closing the digital divide, saying the FCC has taken action to free up more spectrum for wireless use, streamline broadband deployment, and bridge the digital divide.” Ranking Member Bill Nelson (D-FL) disagreed, noting the FCC’s lip service and repeal of consumer protections. “What we haven’t seen is progress in actually closing the digital divide,” he said.

So, let's take look at a few of the different divides in 2018 that slowed progress on closing the digital divide.

Industry-Stacked FCC Advisory Panel Delivers on Pai Agenda

Last January, I was reporting on the FCC’s Broadband Deployment Advisory Committee (BDAC, pronounced Bee-DACK). The intention of the committee was to bring together various stakeholders to recommend how the FCC could accelerate the deployment of high-speed internet access. Or was it? 

From its earliest days, observers noticed that BDAC lacked equitable representation among key stakeholders, mainly local governments. More than 75 percent of BDAC’s members represent large telecommunications and cable companies. San Jose Mayor Sam Liccardo said in August 2017, “It’s not lost on us that among the 30-odd members of the BDAC, only two represent local government. We’ll see where things go in the weeks ahead, but it’s fair to say the footprints are in the snow.” Mayor Liccardo quit BDAC five months later, saying that the committee was “advancing the interests of the telecommunications industry over those of the public." 

“Though his top priority may be closing the digital divide, it appears Chairman Pai’s approach is only widening the divide between [broadband service providers] and community leaders,” I wrote at the time.

5G Rollout: Dividing Federal and Local Infrastructure Control 

In June, Blair Levin, architect of the 2010 National Broadband Plan, wrote a report on the relationship between BDAC and local governments:

“I expect the BDAC and the FCC will adopt a framework in which industry gets all the benefits with no obligations, and municipalities will be forced to bear all the costs and receive no guaranteed benefits. This kind of process will result in a transfer of wealth from public to private enterprises—and leave American cities and metropolitan areas no better positioned to tap into digital telecommunications to unlock innovation and shared economic prosperity.” 

Levin’s expectation, unfortunately, became reality at the FCC’s September 2018 meeting. The FCC voted to “reduce barriers to 5G wireless infrastructure deployment,” but the order heavily referenced recommendations from BDAC, and was seen as another move by the Pai FCC to produce policy that favors industry at the cost of local control. I wrote:

“Under the guise of promising shiny new technology and closing the digital divide, the FCC is proposing a change in rules that is a blatant effort to strengthen the hand of wireless carriers in negotiations with local governments over small cell deployment and to limit the ability of local governments to negotiate in the public interest. This is a huge tradeoff -- and one happening without much public debate.”

Levin criticized the FCC for ignoring reality in its proposal:

“Local governments have a strong recent track record of endeavoring to enable and facilitate broadband deployment. The FCC’s draft order infantilizes carriers by preempting state and local government, presumably on the theory that carriers cannot protect themselves in negotiations with states and localities. Despite the FCC’s rhetoric, the proposal will likely exacerbate, rather than alleviate, the digital divide.”

‘Ridiculous and Irresponsible’ Broadband Deployment Conclusions

On February 2, the FCC released its Congressionally-mandated annual report on the availability of broadband. The FCC’s 2016 report found that broadband was not being deployed in a reasonable and timely fashion (matching the previous 4 reports). But in 2018:

The FCC’s Republican majority now concludes, in the 2018 Broadband Deployment Report, that the root cause of the U.S.’s broadband deployment woes were the FCC’s own actions to protect the Open Internet. But, apparently, the repeal of those consumer protections in December 2017 – a repeal that officially has not been implemented as of this writing – has restored the progress of U.S. broadband deployment. Or, at least, that’s what the FCC is asking us to believe.

Officially, the FCC concluded that high-speed, switched, broadband telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. But the FCC also stressed that this finding does not mean that all Americans now have broadband access. “Rather, it means that we are back on the right track when it comes to deployment,” the report says.

In reality, the FCC's report demonstrated the persistent digital divides in the U.S. According to the law, the FCC is supposed to take immediate action to accelerate broadband deployment by removing barriers to infrastructure investment and promoting competition. Instead, the FCC concluded it's on the right track in closing the digital divide, so no action is needed. 

“This is ridiculous—and irresponsible,” said FCC Commissioner Jessica Rosenworcel when the report was released. 

“[I]f you are desperate to justify flawed policy, I think the straw-grasping conclusions contained in this report are for you,” wrote fellow FCC Commissioner Mignon Clyburn.

Net Neutrality

Much has been written about net neutrality over the last year (and decade). In 2018, Chairman Pai fanned the flames of this hotly-partisan debate.

In December 2017, Chairman Pai joined a pizzagate conspiracy theorist in an eccentric video on conservative news site The Daily Caller in which he defended his move to repeal net neutrality by openly mocking supporters of net neutrality. Chairman Pai portrayed "the concerns of many consumers, technology companies and civil society groups as doomsday hysteria," reported the Washington Post. 

Chairman Pai was widely criticized for the video. Later, in a tragically absurd example of the divided times, the National Rifle Association gave Chairman Pai the “Charlton Heston Courage Under Fire Award” (a handmade long gun) for recognition of months of heavy criticism over his push to repeal the FCC’s net neutrality rules.

Meanwhile, the dominance of the net neutrality debate has pulled attention away from broadband expansion. John Horrigan, a researcher who studied Internet adoption while working on the 2010 National Broadband Plan, says the net neutrality issue is an important question, but it has had an unwanted side effect. “A whole lot of other issues aren’t getting much attention,” he noted. Like, “how to close the digital divide, how to improve digital equity.”

Oral arguments in a pending court appeal of Pai's net neutrality move will be heard in February 2019. The partisan divide over this issue is far from over. 

Broadband Maps to Nowhere

FCC oversight hearings in both the Senate and the House revealed bipartisan support among lawmakers for more accurate broadband maps.

There were a number of developments in this arena: 

  1. The FCC unveiled a new National Broadband Map. But the new map was quickly criticized for overstating broadband availability and speeds while failing to report on the cost of service. 
  2. The FCC kicked off a challenge process to allow stakeholders to question data on wireless broadband deployment maps meant to deterine where Universal Service Fund subsidies for deploying LTE wireless service will flow. At least 30 U.S. senators said the Connect America Mobility Fund map “falls short of an accurate depiction of areas in need of universal service support.” The senators noted that communities incorrectly deemed ineligible could lose out on up to $4.5 billion in support over the next 10 years, thereby “exacerbating the digital divide and denying fundamental economic and safety opportunities to rural communities.”
  3. Congress gave the Department of Commerce’s National Telecommunications and Information Administration $7.5 million to work on the National Broadband Map. NTIA is currently considering sources of broadband availability data, mechanisms to validate broadband availability data using multiple data sources or new techniques, and approaches to leverage such data and techniques to inform broadband planning at the state and national levels by promoting the most efficient use of state or federal funding to areas that are insufficiently served by broadband. But the $7.5 million pales to the $350 million allocated to NTIA in 2009 to create and maintain the first national broadband inventory map.
  4.  New data from the US Census Bureau included data on internet subscription rates at the county level. Although the Census numbers report on subscriptions, not availability, they confirm that persistent divides continue: households in both rural and lower-income counties trail the national average.

Without accurate data and maps, policymakers lack the information they need to create effective policy solutions. “By painting a far rosier picture of the digital divide than is warranted, policymakers have a far less sense of urgency about fixing the problem,” noted Gigi Sohn. “And of course, if you don’t know the breadth of a problem, policymakers can’t be very strategic or targeted in fixing it.”

Optimism for 2019

In communications policy-land, 2019 may be different than 2018, in large part due to the midterm election. While we expect partisan division to persist, the change in House leadership means we are likely to see more scrutiny of Chairman Pai's deregulatory agenda.

As far as legislation goes... well, maybe. Politico’s John Hendel wrote:

“A Democratic House and Republican Senate have a bipartisan shot at legislating on tech issues, but it’s a limited one. The two chambers show signs that they could align around...directing new funds to improve internet service in rural parts of the country. But with a tight window for legislating and the 2020 presidential election looming, the political climate doesn't favor robust cooperation, making any breakthroughs challenging.”

The Congressional Research Service, which wrote a report on federal assistance programs related to the digital divide, had this to say about Congress' options for expanding broadband access:

To the extent that Congress may consider various options for encouraging broadband deployment and adoption, a key issue is how to strike a balance between providing federal assistance for unserved and underserved areas where the private sector may not be providing acceptable levels of broadband service, while at the same time minimizing any deleterious effects that government intervention in the marketplace may have on competition and private sector investment.

The 116th Congress may address the digital divide issue by considering various approaches to providing support for infrastructure deployment, including support for rural broadband. In addition to loans, loan guarantees, and grants for broadband infrastructure deployment, a wide array of policy instruments are available to policymakers, including universal service reform, tax incentives to encourage private sector deployment, broadband bonds, demand-side incentives (such as assistance to low-income families for purchasing computers), reducing regulatory barriers to broadband deployment, and spectrum policy to spur rollout of wireless broadband services. 

There are many actions Congress could take to address the digital divide. But partisan division stands in the way. 

There are reasons to be optimistic. There’s great consensus that our goal should be universal broadband. At the local level, leaders of all stripes are working to make this a reality.

At the Benton Foundation, we will continue to make information and analysis about communications policy accessible. Benton supports legal and policy experts who preserve and strengthen the public benefits of America’s communications environment, who can nourish and protect democratic values, and who can communicate to the public why this all matters. 

  • Benton Senior Fellow Jon Sallet is assisting the Benton Foundation in a comprehensive, year-long review to update America’s approach to broadband access for the coming decade.
  • Benton Senior Fellow and Public Advocate Gigi Sohn will continue her role as one of the nation’s leading public advocates for open, affordable, and democratic communications networks. Read her policy framework for an Open Internet Ecosystem.
  • Benton Senior Counselor Andrew Jay Schwartzman will continue to develop a new generation of media and telecommunications activists, as he mentors law students to represent civil rights, civil liberties, media justice, religious, and other organizations (including Benton) before the FCC, other government agencies, and the courts.
  • Benton Fellow Denise Linn Riedl is doing groundbreaking work in the field of smart cities, including an Inclusive Smart City Field Guide for Local Practitioners, which will provide assistance to cities seeking to deploy smart city projects more thoughtfully, considering geographic, equity, privacy, and resident input.
  • New Benton Faculty Research Fellow Dr. Christopher Ali is working on a systematic and comprehensive assessment of rural broadband policy, technology, markets, and stakeholders. In his forthcoming Farm Fresh Spectrum: Rural Interventions in Broadband Policy, Dr. Ali analyzes the complicated terrain of rural broadband policy with a specific focus on broadband-to-the-farm, exploring different business structures, including the importance of co-operatives to provide rural broadband.
  • And, if you weren't aware, the Benton Foundation curates and distributes the only free, reliable, and non-partisan daily digest of media and communications news. You can subscribe to Headlines here

With that, we welcome a less divided, and more connected, 2019.

Quick Bits

Weekend Reads (resist tl;dr)

ICYMI from Benton

Calendar for January 14-18, 2019

Jan 14 -- CANCELLED: FCC's Technology Advisory Council

Jan 15 -- Opportunities for Bipartisan Tech Policy, Next Century Cities

Jan 16 -- Privacy: What is The Way Forward?, Technology Policy Institute

Benton, a non-profit, operating foundation, believes that communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities to bridge our divides. Our goal is to bring open, affordable, high-capacity broadband to all people in the U.S. to ensure a thriving democracy.

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Kevin Taglang

Kevin Taglang
Executive Editor, Communications-related Headlines
Benton Foundation
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By Robbie McBeath.