Walden, Upton Accuse FCC of Distorting Data Production

The Republican leadership of the House Energy & Commerce Committee have told FCC chairman Tom Wheeler they think the commission has undertaken a series of "troubling actions" that "distort – or outright ignore – the FCC’s requirements to produce honest, data-driven reports to inform policymakers and the public.”

That came in a letter to Wheeler dated Feb. 5 and was directed at the FCC's reports on broadband deployment, video competition, and mobile wireless competition.

They peppered the chairman with a lot of questions and said they wanted answers by Feb. 19.

The FCC concluded that fixed broadband was not being deployed in a reasonable and timely manner and could not conclude that the wireless broadband marketplace was competitive though, in the case of local cable, it concluded that traditional video was presumptively subject to effective competitive.

Of the fixed and mobile deployment conclusions, House Energy & Commerce Committee chairman Fred Upton (R-Mich.) and Subcommittee chairman Greg Walden (R-Ore.) wrote: "Since 2011, it appears that the commission has applied inconsistent definitions and analyses in making those determinations. Those reports have then been used to justify commission actions to intervene in seemingly competitive markets. Despite the plain language of the Communications Act, the FCC’s actions seem to benefit specific classes of competitors and do not promote competition. This behavior concerns us.”

"Moreover," they said, "the agency's claimed inability to define effective competition in the mobile wireless market stands in stark contrast to its approach to the video market."

Under sec. 706 of the 1996 Telecommunications Act (which turns 20 on Feb. 8), Congress said the FCC could take various regulatory steps if it concluded that advanced telecom was not being deployed in a reasonable and timely manner. Republicans have argued that was meant to be a deregulatory trigger to remove barriers to competition, not a regulatory one.

Prior to 2010, under Republican chairmen, the FCC concluded that advanced communications services were being deployed in a reasonable and timely fashion.

But since 2010, and under Democratic chairmen, the finding has been that the deployment is not reasonable and timely, essentially on the theory that that will not be the conclusion until everyone has access to high-speed broadband.

Upton and Walden also take issue with what they called the FCC's "ever-changing" definition of advanced telecommunications. The FCC is now defining baseline high-speed broadband as 25 Mbps downstream/4 Mbps up (commissioner Jessica Rosenworcel would like to see that upped to 100 Mbps down). It used to be 4 down and 1 up.

They are not alone. Some Senate Republicans have also questioned the speed definitions.

A spokesperson for the chairman had no comment besides confirming the FCC had received the letter and was reviewing it.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.