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FCC: Should Usage Limits Factor into Sec. 706 Benchmarks?

With a Notice of Inquiry (NOI) released Tuesday, the FCC has launched its latest Sec. 706 inquiry (docket 14-126) into whether advanced telecommunications is being deployed "to all Americans in a reasonable and timely fashion," including whether latency and usage allowances should be factored in as well as speed when it comes to that determination and whether 10 Mbps, or even 15 or 25 Mbps, should be the new measure of high-speed downloads, and whether 1 Mbps suffices for an upload benchmark.

The clear suggestion is that both need to be raised.

If the FCC concludes it is not being deployed in a reasonable and timely fashion, the commission is empowered by statute to regulate in the interests of speeding that deployment.

The commission, in particular, wants input on how it should define advanced telecom — including whether to modify its 4 Mbps down/1 Mbps up definition of high-speed broadband, whether there should be separate benchmarks for fixed and mobile services, how it should treat areas with multiple providers where none alone satisfies the benchmark and how to take into account deployment differences between urban and non-urban areas.

FCC Chairman Tom Wheeler last week told Verizon he was concerned about slowing data speeds for some unlimited plan users during peak periods. Verizon responded that it was a common wireless industry practice and reasonable network management.

The NOI asks whether the FCC should set a speed benchmark on the basis of "peak usage time" and asks for comment on "whether establishing a reasonable household usage scenario during peak periods will assist the Commission in identifying a benchmark that is a necessary component of “advanced telecommunications capability.”

Should the FCC look at the rates at which certain speeds are being adopted, the NOI asks.

The commission also wants to know under what circumstances mobile broadband can be viewed as the functional equivalent of fixed and asks for input on broadband availability at schools.

The FCC said in its 2012 report, the last one issued, that it might need to "update" that 4 Mbps/1 Mbps benchmark. The NOI suggests that the rise in over-the-top services may have answered that question.

"Given the demand for video services and the introduction and use of new services on the market, the Commission may find that the 4 Mbps/1 Mbps speed benchmark no longer allows consumers the ability to “originate and receive” the broadband services identified in section 706," the NOI says. It also includes a chart of various household bandwidth usage scenarios showing that a "low-usage" household with three users watching a standard-definition video, making a "high quality" voice call and browsing the web (with email synching, alerts and weather in the background) totals 4 Mbps/.65 Mbps,  while a moderate-use household would total 7.9/1.05 when the movie is in HD and the voice call is replaced with taking an online education course. A high-use household, with a super HD movie, an HD video call and cloud storage going on at the same time (plus the same background usage) would take 10 Mbps/2.9 Mbps.

With high-speed broadband to everyone as the new benchmark, the FCC has concluded in the past several reports that it is not being deployed in a reasonable and timely fashion.

Those conclusions came as a surprise to ISPS given previous FCC findings that it was being rolled out in a timely fashion.

The Sec. 706 mandate is also how Wheeler is proposing to justify network neutrality regulations. The D.C. U.S. Court of Appeals has suggested that the FCC can make the argument that blocking or degrading broadband service could discourage demand, which could weaken the business case for supply, which could impede that timely deployment and justifying regs preventing blocking or unreasonable network management practices.