Matthew A. Brill

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January 22, 2015
VIA ECFS
Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
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Washington, D.C.

Inquiry Concerning the Deployment of Advanced Telecommunications
Capability to All Americans in a Reasonable and Timely Fashion, and Possible
Steps to Accelerate Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, as Amended by the Broadband Data
Improvement Act, GN Docket No. 14-126; Protecting and Promoting the Open
Internet, GN Docket No. 14-28; Framework for Broadband Internet Service,
GN Docket No. 10-127

Dear Ms. Dortch:
On behalf of the National Cable & Telecommunications Association (“NCTA”), I write
regarding recent press reports that the Commission is weighing plans to establish a new and
significantly higher speed benchmark for measuring broadband deployment as part of its
upcoming Broadband Progress Report pursuant to Section 706 of the Telecommunications Act of
1996. According to these articles, the Commission is considering defining “advanced
telecommunications capability” in the Report as a broadband service that provides download
speeds of 25 Mbps or higher and upload speeds of 3 Mbps or higher1—a benchmark that, if
adopted, would represent a substantial departure from the 4 Mbps/1 Mbps threshold used in the
most recent Broadband Progress Report.2

1

See, e.g., Josh Taylor, FCC To Define Broadband as Minimum 25 Mbps, ZDNet, Jan. 8,
2015, available at http://www.zdnet.com/article/fcc-to-define-broadband-as-minimum25mbps/ (citing a Commission “fact sheet” distributed to media outlets).

2

See Inquiry Concerning the Deployment of Advanced Telecommunications Capability to
All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate
Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as

 January 22, 2015
Page 2

As an initial matter, the Commission should make clear, as it has in prior Broadband
Progress Reports,3 that any speed benchmark it adopts has no regulatory significance beyond the
new Report. As discussed further below, any effort to graft this reporting benchmark onto other
contexts—e.g., determining support levels under the Connect America Fund (“CAF”) or
deciding which entities should be subject to open Internet rules—would present inevitable
tensions given the divergent legal standards and regulatory objectives at play. The Commission
should be particularly careful to clarify that it is not endeavoring to define a distinct product
market for broadband services meeting the speed benchmark. As the Department of Justice and
Federal Trade Commission have explained, “[m]arket definition focuses solely on demand
substitution factors, i.e., on customers’ ability and willingness to substitute away from one
product to another in response to a price increase” or other non-price factors.4 It is beyond
question that consumers would consider a 24 Mbps service (or, in many cases, a 15 Mbps or 10
Mbps service) to be a substitute for a 25 Mbps service for all current and anticipated needs, even
if the Commission chooses to apply the “broadband” label only to the latter.
Even for the limited purposes of the Commission’s reporting under Section 706(b),
adopting a 25 Mbps/3 Mbps threshold for broadband would not be supportable as a factual or
legal matter. Section 706(b) instructs the Commission to report on the deployment of “advanced
telecommunications capability,” which is defined in Section 706(d) as “high-speed, switched,
broadband telecommunications capability that enables users to originate and receive high-quality
voice, data, graphics, and video telecommunications using any technology.”5 Courts and the
Commission have consistently interpreted this mandate as focusing on services that can support
“current,” “regular[]” uses of broadband.6 And the record developed in response to the Tenth
Amended by the Broadband Data Improvement Act, Eighth Broadband Progress Report,
27 FCC Rcd 10342 ¶ 7 (2012) (assessing broadband adoption and deployment “using the
existing speed benchmark of 4 Mbps/1 Mbps”).
3

See, e.g., Inquiry Concerning the Deployment of Advanced Telecommunications
Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to
Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of
1996, as Amended by the Broadband Data Improvement Act, Sixth Broadband
Deployment Report, 25 FCC Rcd 9556 ¶ 11 n.46 (2010) (“We emphasize that we are
benchmarking broadband in this report solely for purposes of complying with our
obligations under [S]ection 706. We specifically do not intend this speed threshold to
have any other regulatory significance under the Commission’s rules absent subsequent
Commission action.”).

4

U.S. Dep’t of Justice and Fed. Trade Comm’n, Horizontal Merger Guidelines, § 4
(2010), available at http://www.ftc.gov/sites/default/files/attachments/mergerreview/100819hmg.pdf.

5

47 U.S.C. §§ 1302(b), (d).

6

See Inquiry Concerning the Deployment of Advanced Telecommunications Capability to
All Americans in a Reasonable and Timely Fashion, 14 FCC Rcd 2398 ¶ 20 (1999);
Verizon v. FCC, 740 F.3d 623, 641 (D.C. Cir. 2014) (noting that the 4 Mbps threshold

 January 22, 2015
Page 3

Broadband Progress NOI reflects broad consensus that the level of service necessary to enable
such uses of broadband—including video streaming, gaming, voice-over-Internet-protocol,
social media, and other applications—is well below the 25 Mbps/3 Mbps threshold currently
under consideration.7
In fact, there is no basis in the record for the Commission to look solely to broadband
services with speeds of 25 Mbps/3 Mbps or faster in carrying out its mandate under Section 706
to evaluate whether the deployment of “advanced telecommunications capability” is “reasonable
and timely.”8 Notably, no party provides any justification for adopting an upload speed
benchmark of 3 Mbps. And the two parties that specifically urge the Commission to adopt a
download speed benchmark of 25 Mbps—Netflix and Public Knowledge—both offer examples
of applications that go well beyond the “current” and “regular[]” uses that ordinarily inform the
Commission’s inquiry under Section 706. Netflix, for instance, bases its call for a 25 Mbps
download threshold on what it believes consumers need for streaming 4K and ultra-HD video
content9—despite the fact that only a tiny fraction of consumers use their broadband connections
in this manner,10 and notwithstanding the consensus among others in the industry that 25 Mbps is
significantly more bandwidth than is needed for 4K streaming.11 Meanwhile, Public Knowledge
asserts in conclusory fashion that an “average” U.S. household constantly streams at least three
high-definition movies simultaneously while also running various “online backup services and

was established because it is “more appropriate to current consumer behavior and
expectations” and captures applications that “consumers now regularly use”).
7

See, e.g., Reply Comments of Verizon, GN Docket No. 14-126, at 7-9 (filed Sep. 19,
2014); Reply Comments of AT&T, GN Docket No. 14-126, at 2-3 (filed Sep. 19, 2014);
Reply Comments of the Wireless Internet Service Providers Association, GN Docket No.
14-126, at 3-6 filed Sep. 19, 2014); Comments of TechFreedom, GN Docket No. 14-126,
at 10-14 (filed Sep. 4, 2014); Comments of the Satellite Industry Association, GN Docket
No. 14-126, at 4-5 (filed Sep. 4, 2014); see also, e.g., Internet Connection Speed
Recommendations, Help Center, Netflix, https://help.netflix.com/en/node/306 (last
visited Jan. 22, 2015) (recommending download speed of 5 Mbps for streaming highdefinition video).

8

47 U.S.C. § 1302(b).

9

See Comments of Netflix, Inc., GN Docket No. 14-126, at 4-5 (filed Sep. 4, 2014).

10

See Joel Epstein, TDG Research, Forecasting the 4K Video Ecosystem 2014-2025,
available at http://tdgresearch.com/report/forecasting-the-4k-video-ecosystem-20142015/ (finding that 4K video remains a “niche” market and is at least five years away
from mass market adoption).

11

See, e.g., Akamai Technologies, Inc., Akamai’s State of the Internet, at 17 (2014),
available at http://www.akamai.com/dl/akamai/akamai-sotiq114.pdf?WT.mc_id=soti_Q114 (defining “4K readiness” according to a download speed
of 15 Mbps).

 January 22, 2015
Page 4

other applications”—without providing any evidence indicating that such usage is at all
“average.”12
In reality, these hypotheticals dramatically exaggerate the amount of bandwidth needed
by the typical broadband user, and the Commission’s own recent findings bear out this reality.
Just last month, the Commission determined that an Internet service provider must offer speeds
of 10 Mbps/1 Mbps in order to be eligible for broadband-related CAF support—based on
findings that “[h]igh definition video requires 5 Mbps downstream,” and that 10 Mbps
downstream would be more than sufficient to support “multiple users . . . relying upon the [same]
broadband connection.”13 The Commission also noted that a relatively small percentage of
consumers who have access to speeds of 25 Mbps/3 Mbps actually choose to purchase service at
those speeds, while most consumers tellingly opt for lower speeds that meet their needs.14 In
light of these findings, the adoption of a 25 Mbps/3 Mbps benchmark would improperly
substitute the speculative judgment of the Commission for the actual, demonstrated preferences
of consumers in the marketplace, and would be entirely out of step with current consumer
conceptions of “broadband.” Relatedly, the Commission recognized in a separate item released
last month that consumers can use widely available broadband services to access online video
distribution services that offer high-quality video images “comparable to programming provided
by a television broadcast station.”15 Adopting a benchmark of 25 Mbps/3 Mbps thus would
exclude an entire range of broadband services that are plainly capable of delivering “high-quality
voice, data, graphics, and video telecommunications” to typical end users,16 and would not fulfill
the Commission’s mandate under Section 706.17
Additionally, defining broadband in this proceeding to include only those services at 25
Mbps/3 Mbps or higher would breed unnecessary complexity and confusion in other contexts.
12

See Comments of Public Knowledge, GN Docket No. 14-126, at 16-18 (filed Sep. 4,
2014).

13

Connect America Fund, WC Docket Nos. 10-90 et al., Report and Order, FCC 14-190, ¶
17 (rel. Dec. 18, 2014).

14

See id. ¶ 17 n.37 (“The adoption rate for at least 10 Mbps/768 kbps is 56% in urban areas
and 47% in rural areas, with an overall adoption rate of 52%. . . . The adoption rate for at
least 25/3 Mbps is 30% in urban areas, 28% in rural areas, with an overall adoption rate
of 29%.”).

15

Promoting Innovation and Competition in the Provision of Multichannel Video
Programming Distribution Services, MB Docket No. 14-261, Notice of Proposed
Rulemaking, FCC 14-210, ¶ 16 n.35 (rel. Dec. 19, 2014) (internal quotation marks,
citations, and alterations omitted).

16

47 U.S.C. § 1302(b).

17

While NCTA would not be opposed if the Commission were to track service offerings at
25 Mbps/3 Mbps in addition to offerings at lower speeds, the Commission should not
rely exclusively on that high threshold in reporting on broadband deployment under
Section 706.

 January 22, 2015
Page 5

For instance, the Commission presumably plans to impose open Internet rules on “broadband
Internet access services” regardless of whether those services meet the 25 Mbps/3 Mbps
threshold—thus calling into question the relevance of any new definition of “broadband” in the
Broadband Progress Report. And as noted above, there is an obvious tension in defining
broadband as 10 Mbps/1 Mbps when evaluating whether to provide CAF support for broadband
deployment, while at the same time measuring such deployment under a 25 Mbps/3 Mbps
threshold. Such inconsistencies may well render any decision to adopt a 25 Mbps/3 Mbps
benchmark in this proceeding—or any effort to rely on that threshold in adopting rules in other
proceedings—arbitrary and capricious.
The Commission thus should not adopt a benchmark of 25 Mbps/3 Mbps for purposes of
evaluating broadband deployment, and in all events should make clear that any benchmark it
does adopt has no regulatory significance beyond the upcoming Report.

Sincerely,
/s/ Matthew A. Brill
Matthew A. Brill
Counsel for the National Cable &
Telecommunications Association