All five Federal Communications Commissioners testified at a Senate Commerce Committee oversight hearing. Commerce Committee Chairman Roger Wicker (R-MS) said the hearing was an opportunity for Commissioners to discuss what more can be done to expand broadband access and digital opportunity for all Americans. He pointed to implementation of the Broadband DATA Act, saying "it is imperative that the FCC develop accurate broadband maps with more precise data about where broadband is available and where it is not – and at what speeds." Chairman Wicker recently authored the Accelerating Broadband Connectivity Act which would incentivize providers to expedite broadband build-out plans without undermining or delaying the Rural Digital Opportunity Fund auction.

FCC Chairman Ajit Pai called on Congress to act to keep all Americans connected during the pandemic. He countered critics who have suggested the FCC delay the Rural Digital Opportunity Fund auction until the commission has a better understanding of where broadband has yet to be deployed, saying "that would be a mistake; the areas the Commission is targeting in the Phase I auction are areas where the Commission’s current data show there is currently no service." He said, "Digital opportunity delayed is digital opportunity denied." Pai also asked again that Congress provide the $65 million the FCC needs to implement the Broadband DATA Act and create granular broadband deployment maps for both fixed and mobile providers.

Commissioner Michael O'Rielly answered calls to expedite the Rural Digital Opportunity Fund auction (now scheduled for Octo 2020). "Expediting the auction shouldn’t be conflated with expediting the buildout of broadband," O'Rielly said. He backed Chairman Wicker's proposal to provide financial incentives to auction winners to accelerate their broadband deployment obligations, through funding appropriated by Congress. And O'Rielly offered three principles for Congress to consider if it addresses broadband deployment: 1) safeguard against wasteful, subsidized overbuilding, 2) technology neutrality, and 3) consider the FCC as the primary means to allocate new funding.

Commissioner Jessica Rosenworcel said policymakers must act to address problems laid bare by the pandemic. First, she said, we need a clear plan for broadband for all. Second, we need a clear plan to fix the Homework Gap. Third, we need a clear plan to keep all Americans connected. Fourth, we need a clear plan for a secure 5G future. Fifth, we need a clear plan to sustain local media and stand up for the First Amendment. Finally, we need a clear plan to learn from the crisis before us.

During the pandemic, Commissioner Geoffrey Starks has called for a “connectivity stimulus”: "I called on Internet Service Providers to introduce or expand their low-income broadband programs and eliminate their data caps. In times of emergency, no American should go without a connection because of cost. I called for expansion of the Commission’s Lifeline program and for temporary waivers to put underutilized spectrum to work." Starks said the FCC's Lifeline program remains dramatically underutilized, and its benefits do not meet the needs of low-income consumers in this era of social distancing. The FCC, Starks said, must coordinate with agencies that administer services like SNAP or Medicaid that determine eligibility for Lifeline to ensure low-income communities learn about this critical program. Americans cannot afford for the government to work in silos. He said policymakers should also increase Lifeline’s voice and data offerings to meet the connectivity needs of low-income subscribers during this public health crisis.

A frequent topic for discussion during the hearing was President Donald Trump's Executive Order on Preventing Online Censorship and the role the FCC will play in interpreting section 230 of the Communications Decency Act. Chairman Wicker said that the Commerce Committee would be looking into edge provider's Sec. 230 exemption from civil liability for how they treat third party content on their sites. Chairman Wicker said Sec. 230 was intended to preserve a vibrant and competitive online marketplace" but said that he was "deeply troubled by recent reports that suggest some online platforms are disproportionately censoring conservative voices or imposing an unfair bias through their policies or terms of service." 

Sen. John Thune (R-SD), the former chairman of the Commerce Committee and current chairman of the Senate Communications Subcommittee, signaled that he and Sen. Brian Schatz (D-Hawaii) are introducing a bill aimed at Sec. 230. The Platform Accountability and Consumer Transparency (PACT) Act, he said, will provide more accountability and transparency about how large tech platforms treat their content and make their content moderation decisions. 

When the National Telecommunications and Information Administration requests that the FCC open a rulemaking, Chairman Pai said he will follow the facts and the law. He would not say whether he thought the Sec. 230 exemption from civil liability for third-party postings needed reforming. His fellow commissioners were not similarly reticent. 

Sen. Ted Cruz (R-TX) said that if the FCC could simply provide for more transparency in terms of how speech was being blocked or throttled by edge providers it would "transform" the ability to address what he said was the problem of censorship of conservative speech.

Does the federal definition of broadband reflect what Americans need today? The current definition, 25 Mbps download speed/3 Mbps upload speed, was set by the Federal Communications Commission, led by former FCC Chairman Tom Wheeler, in 2015. At the time, Chairman Wheeler noted that the previous standard, 4 Mbps/1 Mbps, had been established in 2010 and that “consumer behavior and the marketplace has changed.” Five years after the 2015 revision, life as Americans know it has changed. Joe Freddoso, chief operating officer of broadband consulting company Mighty River, believes there's to a need to redefine broadband again.  He said the 3 Mbps upload part of the definition seems especially behind the times, now that households are more likely to have multiple instances of two-way communication occurring at the same time. 

Scott Wallsten, president and senior fellow at the Technology Policy Institute, studies what consumers are willing to pay for when it comes to broadband. He said whether someone needs service to surpass the 25/3 threshold remains an open question based on the individual. Wallsten’s research shows that consumers are generally willing to pay for a download speed of 50 Mbps. Beyond that, the willingness to pay decreases. Jonathan Chambers, a partner with Conexon, said the 25/3 definition represented what “the telephone industry told the federal government it was capable of delivering with digital subscriber line.” Chambers described the 25/3 threshold as more of a “negative definition,” given that technology, such as a fiber-optic network, can offer far greater speeds. He said 25/3 is too low of a bar for spending tax dollars. “It’s a bad choice for the government to keep buying substandard service,” Chambers said. “It’s the reason why rural America was unprepared for the COVID-19 crisis.”

Starry, a wideband hybrid fiber wireless internet service provider, is partnering with the Housing Authority of the City of Los Angeles (HACLA) to expand affordable broadband access to more than 600 households in Los Angeles’ Del Rey neighborhood. The expansion, part of the Starry Connect initiative, is a specialized low-cost broadband access program that partners with owners of public and affordable housing to make high-quality, uncapped, true broadband access available to residents for only $15 per month. Starry Connect provides 30 mbps symmetrical speeds, all in-home Wi-Fi equipment and installation, and personalized customer care to all its subscribers without requiring a longterm contract, pre-qualification, credit checks, or other complex eligibility criteria that are common requirements of other affordable access plans.

T-Mobile is already trying to get out of merger conditions imposed by state regulators in California less than three months after completing its acquisition of Sprint. T-Mobile filed a petition with the California Public Utilities Commission (CPUC), asking the agency to provide two extra years to meet 5G build-out requirements and to eliminate a requirement to add 1,000 new employees. T-Mobile, which had agreed to other conditions imposed by the federal government, completed the Sprint merger on April 1 without waiting for California's approval. T-Mobile claimed the state has no jurisdiction over wireless transactions. CPUC, which says it does have jurisdiction, imposed conditions when it approved the merger on April 16.

T-Mobile's petition to CPUC could be a prelude to a lawsuit against California if the carrier doesn't get what it wants. On 5G, T-Mobile's petition targets a condition requiring average speeds of 300Mbps to 93 percent of California by the end of 2024. T-Mobile asked the CPUC for an extra two years to comply, saying it should have until the end of 2026. T-Mobile claims the 2024 date was a mistake "because the 2024 date was a proxy—used [by T-Mobile] at the beginning of the regulatory approval process in 2018—for the period ending six years after closing (which of course occurred in 2020)." Changing the deadline to 2026 would bring the condition "in line with the company's network model, which includes coverage projections for three- and six-year periods from close," T-Mobile said. T-Mobile also asked the CPUC to rely on Federal Communications Commission drive testing to confirm compliance with network expansion requirements instead of imposing its own testing requirements. The CPUC's plan to do its own drive testing "is duplicative and unnecessary, and will inevitably result in regulatory uncertainty and potentially inconsistent testing results (which would raise federal preemption concerns)," T-Mobile wrote.

The Federal Communications Commission approved an additional $29.41 million for 77 funding applications for the COVID-19 Telehealth Program. To date, the FCC’s COVID-19 Telehealth Program, which was authorized by the CARES Act, has approved 444 funding applications in 46 states plus Washington (DC) for a total of $157.64 million in funding. [See a list of health care providers that were approved for funding at the link below]

Building a consensus to change Section 230 will be harder than it looks. The law’s critics have vastly different and sometimes incompatible ideas about how the law should work. Republican and Democratic policymakers alike have called for sites to bear more legal liability if users post illegal content. For many Republicans, though, that’s paired with a contradictory goal: making them afraid to moderate too harshly. So far, both factions have been able to gloss over that difference with rhetoric about “regulating Big Tech” and a general agreement that Facebook and Google need to shape up. But as policymakers get serious about changes, that split is going to get harder and harder to ignore, with unpredictable consequences for reformers.