Phoenix Center for Advanced Legal & Economic Public Policy Studies

The debate over how internet platforms moderate content has reached a fever pitch. To get around First Amendment concerns, some proponents of content moderation regulation argue that internet platforms should be regulated as “common carriers”—that is, internet platforms should be legally obligated to serve all comers without discrimination. As these proponents regularly point to communications law as an analytical template, it appears that the term “common carrier” has become a euphemism for full-blown public utility regulation complete with a dedicated regulator.

This study focuses on broadband deployment over the years 2014- 2020 in Tribal and non-Tribal census tracts using the Federal Communications Commission’s Form 477 data to quantify progress. This “Tribal Gap” is measured as the difference in average broadband availability between Tribal and non-Tribal census tracts. Unmatched and matched samples are used, and a sample of census tracts within 30 miles of a Tribal area is also analyzed with and without matching.

To receive subsidies to expand broadband to unserved areas under the Broadband Equity, Access, and Deployment (BEAD) program provided by the Infrastructure Investment and Jobs Act (IIJA), the National Telecommunications and Information Administration (NTIA) requires states to implement plans to ensure middle-class affordability. Since the NTIA did not conclude that broadband was unaffordable for middle-class households, the threshold question is whether broadband is affordable to the middle class. Affordability, which has no formal definition, is defined by reference to adoption.

The Federal Communications Commission’s existing broadband availability maps have been heavily criticized as inaccurate, especially for the purpose of distributing billions in subsidy dollars to extend broadband networks to unserved areas. In a rush to distribute the National Telecommunication and Information Administration's (NTIA's) Broadband Equity, Access and Deployment (BEAD) subsidy dollars, a few states have initiated their own mapping efforts and some advocates have proposed alternative mapping means using speed-test data to identify areas that lack adequate broadband.

The lack of broadband in many rural and Tribal communities is widely recognized, but there are also claims of a lack of broadband availability in predominantly Minority and urban communities, sometimes labeled digital redlining or digital discrimination. Motivated by such claims, the bi-partisan Infrastructure Investment and Jobs Act of 2021 (IIJA) includes a specific provision to address digital discrimination and the Federal Communications Commission is currently contemplating formal rules for such.

In a new analysis entitled A Quality Check on Form 477 Data: Errors, Subsidies, and Econometrics, Phoenix Center Chief Economist Dr. George Ford compares Federal Communications Commission Form 477 data to the State of Georgia's broadband availability survey data to make several interesting findings:

According to the DC Circuit’s logic, the Federal Communications Commission’s jurisdiction over broadband Internet access services now resides in some sort of regulatory purgatory.

USTelecom recently released an update to its US broadband industry capital spending series. In this update, USTelecom reported that sector investment rose $1.5 billion (or 2%) between 2016 and 2017—a reversal of a two-year decline following the 2015 Open Internet Order.