While acknowledging these successes, the FCC’s Sixth Broadband Deployment Report – or 706 Report – nevertheless concludes that broadband is not being deployed to all Americans on a “reasonable and timely” basis because five percent of American households don’t have access to broadband with speeds of at least 4 Mbps.

It’s worth noting that the 4 Mbps threshold is new and represents a significant increase from the 768 Kbps used in the 2008 report, and the 200 Kbps used in the first four reports.  We have no problem using a 4 Mbps threshold for defining broadband:  I have argued for several years that 200 or 768 Kbps was an inadequate threshold for a policy definition of broadband (pages 5-6).  But if the 706 Report is to retain any value as a measurement tool, the Commission must heed its own advice and use the definition as “a relatively static point at which to gauge progress and growth… from one Report to the next.” If the Commission continually increases the speed threshold to reflect “current demand patterns” and “estimated future demand” as it did this year, it becomes a circular nullity and it will be a certainty that deployment never will be considered reasonable and timely.

While we respectfully disagree with the report’s overall conclusion, I do understand and agree with some of the policy implications embedded in it. Why?  Because the report plainly acknowledges that there is no reasonable business case to be made for extending broadband facilities to many of the unserved homes.  So instead of viewing the report’s finding as an indictment of broadband providers, it’s  perhaps better read as a statement of principle by the Chairman and two commissioners that, in their opinion, broadband already should be universally available, and, if there is no business case for that universal deployment, the government may have to step in to achieve it. So far as that goes, we agree.  For example, we support the report’s call to action on specific items that will speed broadband deployment to unserved communities.  Immediate FCC action on Universal Service Fund (USF) reform and pole attachment policy is critical to connecting unserved areas.

As explained in comments we filed last week, our industry strongly supports the USF reforms recommended in the National Broadband Plan (NBP).  To fund the FCC’s broadband USF proposals, we recommend adopting our proposal – filed in a November 2009 rulemaking petition – to reduce subsidies in rural areas where ample phone competition exists.  The sooner the Commission reduces unnecessary funding in the existing high-cost support program, the sooner it can direct funding to broadband deployment and adoption.

We also strongly support the recommendations in the NBP to establish low and more uniform rates for pole access, expedite the attachment process, and improve rights-of-way management.  As we’ve explained in numerous pleadings, lowering the cost and improving the process for attaching broadband network to utility poles will make a significant difference in the business case for broadband in rural areas.

We appreciate that the report did not point to the Commission’s pending “Third Way” or “Open Internet” proceedings as potential solutions for connecting unserved areas.  There has been, and will continue to be, extensive debate on the merits of the Commission’s proposals in those proceedings.  But no one could credibly argue that adding Title II regulation, in any form, will have the effect of encouraging providers to invest in remote areas that they are not serving today.

But we’re disappointed with the Commission’s use of data in the report.  The report relies almost completely on stale data, flawed data, or undisclosed data.

The key statistics in the report are drawn from Form 477 data for December 2008, data that was out of date when it was released earlier this year and is now 18 months old.  Broadband providers have made two subsequent Form 477 filings (with another one scheduled in a few weeks), so the reliance on stale data is frustrating.

Equally troubling is the Commission’s repetition of the NBP’s claim that “actual” broadband speeds are only half of “advertised” speeds.   After the NBP was released, we submitted an expert technical report demonstrating that the comScore data used was deeply flawed.  Since then, cable and telco ISPs have been working constructively with Commission staff on a hardware-based testing regime that should produce more accurate results.  Given the hard work that has been devoted to produce accurate speed measurements, it is disheartening that the 706 Report chose to perpetuate the NBP’s flawed speed data conclusions.

Finally, some of the data relied on in the 706 Report is not publicly available.  The report relies extensively on a cost model created for the NBP, but that model hasn’t been released, making it impossible to validate its results.  The Commission also repeatedly refers to an FCC staff report on international trends, but that report also has not been released.

The good news is that these data hurdles can be overcome, and the Commission is embarking on a major initiative to revamp its data collection and reporting processes.

As we continue to reflect on the findings of the 706 Report, keep in mind that broadband has been adopted faster than any other major consumer technology ever.  We still have some work left to ensure that every American can reap the benefits of this service but let’s not lose sight of our success.

This received a lot of coverage (see this Ars Technica post), but lost in all the hubbub were the findings on consumer satisfaction: 91% of home broadband users report being at least somewhat satisfied with the speed of their service.

• 50% of home broadband users are very satisfied with their home connection speed.
• 41% of home broadband users are somewhat satisfied with their home connection speed.

How Do We Measure Satisfaction?

So, people generally don’t know their speed, but they are largely satisfied. Are these findings at odds? I don’t think so.

I’m a pretty savvy Internet user, but I couldn’t tell you off the top of my head what the speed of my Comcast home connection is. We also have Comcast here at NCTA’s offices, so I can check Speedtest.net and tell you I’m getting 35.74Mbs down / 4Mbs up. A colleague checked it earlier today and got 45 down / 6 up.

But I had to check to get those figures, because I don’t really need to know the speed I’m getting. What I’m interested in is whether I’m having a satisfactory experience. Are web pages loading? Is my streaming video buffering too much?

As NCTA has explained (See this previous post: The Measure of “Measurement”), and the FCC has acknowledged, online speed tests can provide a measure of the speed that a user experiences, but they do not necessarily provide an accurate measure of the performance of a user’s broadband provider because the results also are affected by the performance of home networks and the public Internet.

Occasionally, I’ll download really large files, but I don’t use any low latency applications. Therefore, for email, web browsing and streaming media, a steady connection covers my needs. My Internet experience is also affected by the computer I’m using and the sites I visit, which can only load the content so quickly in any case.

And since my cable provider keeps periodically increasing the speed of my cable modem service at home, I don’t keep up with what it is at any given point (although I know I passed 10 Mps some time ago). As long as it works and I can do all the things I need to do, I don’t otherwise pay attention.

The FCC’s survey suggests that the vast majority of users may have a similar view. In that sense, it is worth noting that the survey seems to present a very different – and more accurate – picture than you would get if you only read the comments that are posted on blogs that cover this issue.

The Future of Fast

Some people need a super-fast connection or do need to worry about latency, such as gamers. And as such applications as telemedicine or high-definition teleconferencing become more prevalent, more people will fall into this category. In the future, I may pay much closer attention to the speed I receive.

Cable operators appreciate that different consumers may need different levels of service and that some customers may be more concerned with the specific details of their service than others. That’s why NCTA has been working closely with the FCC on the testing initiative announced on Tuesday. The SamKnows test should be a good starting point in developing a common method by which all broadband providers can measure the speed they deliver to consumers.

But the reason 80% of users don’t know the speed of their connection may be because that’s not how they measure satisfaction.

“The issues presented by the Comcast decision are a test of whether Washington can work—whether we can avoid straw-man arguments and the descent into hyperbole that too often substitute for genuine engagement.”

At NCTA, we couldn’t agree more and pledge again that our industry will work constructively with the FCC, Congress and all policymakers to create an appropriate framework that preserves an open Internet and achieves the goals of the National Broadband Plan.

But as this important dialogue moves forward, it’s critical that we at least have a common understanding of some basic facts – perhaps the most basic being a common understanding of what the Internet is.

Which brings me to the odd “rebuttal” that Free Press issued today to comments by NCTA and others on the Chairman’s “third way” proposal. It includes these phrases:

“The ‘Internet’ is not the wires that deliver the content and applications, but the content itself.”

“We trust that the NCTA will be reassured by the FCC’s repeated assertions that they have absolutely no plans to regulate the Internet.  Being the expert agency for communications, the FCC recognizes that broadband communications services are not ‘the Internet’, contrary to NCTA’s deliberately misleading statements.”

Perhaps Free Press should take a closer look at the Communications Act – specifically section 230(f)(1), which was added by the 1996 Telecom Act:

“The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.”

Nowhere in Congress’ definition does it describe the “Internet” as being the “content” provided over the networks rather than the networks themselves.  The Commission itself cited Congress’ network-based definition of the Internet in adopting its 2005 Policy Statement on Broadband Internet Access.

Congress used a similar network-based definition in the Broadband Data Improvement Act in 2008:

INTERNET.—The term ‘‘Internet’’ means collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor successor protocols to such protocol, to communicate information of all kinds by wire or radio.

Likewise, the US Supreme Court has described the Internet as a “network of interconnected networks” (National Cable & Telecommunications Ass’n v. Brand X Internet Services) and as a “worldwide mesh or matrix of hundreds of thousands of networks, owned and operated by hundreds of thousands of people”(Reno v. ACLU).

Free Press may wish that the Internet was something else, but that does not make it true.  Let there be no doubt: When you regulate broadband networks, you are regulating the Internet.

[Editor's Note: Rick Chessen is Senior Vice President, Law & Regulatory Policy for NCTA. In addition, one sentence above was edited for clarity]

You can find a PDF of The Third Way: A Narrowly Tailored Broadband Framework online. It’s also helpful to read this statement from General Counsel Austin Schlick.

We’ve just released a statement from NCTA President & CEO Kyle McSlarrow.

“We firmly believe that the case for new regulation of the Internet has not been made. Today’s competitive and dynamic broadband marketplace already operates according to openness principles that have broad industry consensus and serve consumers well. We support the goals and many recommendations of the National Broadband Plan. And, as we have repeatedly made clear, we are prepared to work constructively with the FCC, Congress and all policymakers to create an appropriate framework that preserves an open Internet and achieves the goals of the Broadband Plan.

“Given that context, the proposal to ‘reclassify’ broadband services is disappointing. We fully acknowledge and appreciate that Chairman Genachowski has outlined an approach designed to avoid the full regulatory impact of a Title II regime and that he has asked for comment and constructive alternatives, including inviting a continuing dialogue about solutions under Title I. We also understand the challenging jurisdictional questions before the Commission. However, any Title II approach is still fraught with legal uncertainty and practical consequences which pose real risks to our ability to provide the high-quality and innovative broadband services that our customers expect, thus undermining the very investment and innovation goals we share with Chairman Genachowski and upon which the National Broadband Plan depends.

“Nothing has occurred either in the marketplace or in broadband technology to change the fact that our broadband services are ‘information services,’ and not ‘telecommunications services’ that are regulated under a model designed for a previous era and for very different services. Thus, as part of the process outlined today by the Chairman, we will continue to make the case that the better course is to develop a solution that reflects the longstanding and bipartisan view that all components of the Internet should be subject at most to limited regulation under Title I.”

Here is some news coverage of the announcement.

• FCC Officials Lay Out ‘Third Way’ of Regulation
• FCC to Adopt “Title II Lite” Approach to Web Regulation
• FCC Seeks to Reclaim Powers After Losing Court Case to Comcast

Saying the FCC must be a "smart cop on the beat preserving a free and open Internet," FCC Chairman Julius Genachowski Monday proposed adding two new Internet access principles to the existing four, and will begin the process of codifying all of them with a Notice of Proposed Rulemaking at the FCC’s October meeting.

In a written statement, NCTA’s President & CEO Kyle McSlarrow applauded Genachowski’s "vision of preserving an open Internet in order to promote entrepreneurship without permission." He reiterated the cable industry’s commitment "to an open Internet that allows consumers to use and enjoy lawful content and services of their choosing."

He also said:

We recognize that we may, however, have a different view about the state of competition and the choices and benefits that flow to consumers from that competition.  While we look forward to working with Chairman Genachowski and his colleagues, we will continue to present facts and data to the Commission that suggest that any regulation in this arena should be approached with great caution and only in the most targeted way, and to advocate policies that avoid government entanglement in operational decisions that could undermine the very dynamism of the Internet we all seek to preserve.

David L. Cohen, on the Comcast Voices blog, also indicated their support for the process.

We welcome the dialogue suggested by the Chairman in his comments, and we completely agree that any consideration of new “rules of the road” begin with notice and an open, public rulemaking proceeding – this is both fair and appropriate.

A tweet from Julian Sanchez yesterday raised an interesting point. There are those who may object to any government regulation at all. There are also those who may reflexively support any regulation that seems to be opposed by "big companies."

Previously, we noted on this blog how the "net neutrality" debate has evolved over time. NCTA has consistently supported our customers’ ability to travel the Internet freely; our Internet access service wouldn’t be of much use without that. But the devil is always in the details and while we have always supported fair rules, it will be critical to move forward carefully.

It’s worth noting that this isn’t the first time the FCC has visited this issue, since the Commission adopted a new definition just last year in connection with changes to the Form 477 broadband reporting process. The 477 process semi-annually collects information from service providers about broadband connections to households and businesses; info has been collected each year, starting with data as of December 31, 1999.  Last year, the Commission found that services with download speeds of more than 768 kbps and upload speeds of more than 200 kbps will be defined as “broadband” services. Such a definition was important for the NTIA and RUS to have for use in their broadband funding programs.

But, as we say in our filing, we don’t think it would be a good idea for the Commission to use the process of defining “broadband” as a vehicle for imposing obligations or setting goals with respect to factors such as speed, price, symmetry or “openness.”  The definition has been, and should continue to be, simply a way to describe what is being made available to customers.  Any discussion of national broadband goals or potential service provider obligations should be done separately.  As cable’s history of providing faster and faster speeds demonstrates, the FCC’s definition has never served as a constraint on what is offered to consumers. What’s needed is a generic definition that focuses on the core functionality of the broadband service that customers are receiving today.

We identify three key advantages to such an approach:

• Using the definitions already in Form 477 (also used by NTIA in its recent mapping Notice of Funds Availability), will enable the Commission to compare a consistent set of data over time.
• Using those existing definitions will avoid the need to make additional changes to the Form 477 reporting process.
• It’s helpful for government agencies to use a consistent set of definitions.

Consistency is important and if we try to measure aspects at too granular a level, it becomes difficult to achieve such consistency.  For example, some parties have raised concerns about using advertised speeds as the basis for measuring broadband deployment.  In the Notice, the Commission notes that advertised speeds “generally differ from actual rates, are not uniformly measured, and have different constraints over different technologies.”  But simply requiring providers to report “actual” speed won’t lead to more meaningful information because there is no uniformity in how it is measured and there are numerous factors beyond the control of the provider that affect upload and download speeds.  Consequently, in our comments, we encouraged the Commission to work with the Internet engineering community to develop a consistent, uniform, reliable method of measuring “actual” speed before making a change.

There are proponents who argue that symmetry should be required, but most broadband networks are engineered to provide higher speeds for downloading than for uploading. Such an approach is based on consumer preferences and behavior; if symmetrical services are required, that would prevent providers from offering asymmetric services that might better suit the needs of some consumers.

A comparison might be made to creating a definition of a “computer.” Such devices can range from a netbook costing a couple hundred dollars to several thousand for a Mac Pro. The core functionality of various computers is what remains the same. Such a straightforward approach is also best when attempting to define broadband, as it exists at this time.

We at NCTA have been using Twitter for about a year and a half to provide updates on our blog content, to promote the Cable Show, and for conversation with and commentary by our CEO Kyle McSlarrow. We’re pleased to see the FCC adopting Twitter and welcome them to this vibrant online discussion.

The FCC account already has over 1,000 followers, and we’re a few of them.  The Internet provides a healthy forum for telecom policy discussion and debate. The number of followers they’ve already amassed indicates the interest level for that dialog.  To welcome them to Twitter, and to share some of our favorites with you, we thought we’d put together a list of our favorite follows.  These are in no particular order, they’re just good content from some very engaging viewpoints.

• @Normative – Julian Sanchez is the Washington Editor for Ars Technica. He covers politics, technology, and even comic books.
• @RobPegoraro – Rob has been critical of cable in the past, but he always brings a fresh perspective to technology. While he styles himself as a local reporter covering the DC area, he has attracted an audience much larger in scope.
• @BlankBaby – Scott McNulty recently took the helm of Comcast Voices – the company’s corporate blog. The blog provides the perspective of the nation’s largest cable provider. Prior to joining Comcast, McNulty was a prolific contributor to The Unofficial Apple Weblog
• @KyleMcSlarrow – Even if he wasn’t our boss, we’d have to recommend Kyle. He does, after all, represent the industry that brings voice, video and broadband to more than 63 million American homes.
• @CZ – While Verizon is a competitor, John Czwartacki does a great job handling their social media outreach.
• @msilbey – Mari Silbey writes for ZatzNotFunny and also handles corporate blogging for Motorola at Media Experiences 2 Go.
• @DaveZatz – Dave is the editor and creator of ZatzNotFunny. He also writes for Engadget and PC Magazine.
• @Om – To many readers of tech publications, Om Malik needs no introduction. His blog GigaOm is a must read for the tech and gadget fan.
• @mmasnick – Mike Masnick is the author of TechDirt, a group blog that covers policy and technology as they shape business innovation.
• @SchatzWSJ – Amy Schatz covers telecom policy for the Wall Street Journal. She covers the FCC and Tech policy, so she’s a definite must.
• @ReginaHopper – Regina is the face of NextGenWeb and a prolific Tweeter. Much of her stream is news and information about broadband – a good source for stories you might have missed.
• @SaulHansell – Saul is the editor of the NY Times Bits Blog and covers everything from advertising to pricing and policy.
• @AdamThierer – Adam is the Progress and Freedom Foundation’s technology policy guru.
• @FreePress – We often disagree on the issues, but we always respect their position.  That’s why we follow them.
• @CJSettles – Craig Settles is a telecom industry analyst.
• @mcuban – You may know him as the Dallas Mavericks Owner or former Dancing With the Stars Contestant, but before that, he made his fortune on Internet content and has a lot to say about telecommunications.
• @linkhoe – Assistant Vice President for Internet and Technology at Verizon. An important player in telecom and frequent contributor to Verizon’s policy blog.
• @joseiswriting – Jose Antonio Vargas formerly covered technology and politics for the Washington Post and is now Technology Editor for the Huffington Post.
• @waltmossberg – Walt is the author and creator of the Personal Technology column in the Wall Street Journal and a Contributor to AllThingsD
• @artbrodsky – Art’s another person with whom we often disagree, but he always brings an interesting perspective as an advocate and blogger for Public Knowledge.

These are some of the really interesting voices in telecommunications on Twitter. Our friends at the FCC will learn a lot from them, and we hope you will, too.

Update: We probably should have added this at the start, but if you think we’ve missed someone, please drop a comment and let us know.  We’re always looking for more people to follow.

On Monday, James Assey, Executive Vice President of NCTA, participated in a Roundtable on Nondiscrimination and Interconnection Obligations.

As part of the stimulus package, funding was included to “establish a Broadband Technology Opportunities Program for awards to eligible entities to develop and expand broadband services to rural and underserved areas and improve access to broadband by public safety agencies.” NTIA and RUS, the agencies that are implementing BTOP, are holding a series of public meetings, and Monday’s event was part of this. In broad terms, “Nondiscrimination and Interconnection Obligations” refers to how networks interact with each other and exchange traffic.

That’s a whole lot of background to set-up the statement that Assey delivered, which can be accessed on our website, along with a summary.

On Tuesday, NCTA Associate General Counsel Steve Morris spoke on a panel at another public meeting. Andrew Feinberg at BroadbandCensus.com provided coverage:

The statutory guidelines provide a good start in determining standards, said Morris. Morris invoked President Obama’s call for a transparent process, and said it be governed by a merit-based system of seven objective measurements to be shared between NTIA and RUS.

Job creation and preservation should be first and foremost among the selection criteria, Morris said. Preference should also be given to those applicants that can complete build-out within the statutory time periods, and that are able to maintain projects afterwards.

Infrastructure should be built out first the “last mile,” Morris said. And programs that target schools, libraries, and other “public interest” institutions should be ranked ahead of those that don’t, he added. Further considerations could be cost per capita and relative expense compared to other forms of communication, he said.

On Wednesday, NCTA responded to a Request for Comments on the FCC Report On Rural Broadband Strategy; those comments can also be found on our website. Essentially, we called for complete interagency communication and coordination; transparency; a set of coherent and clearly defined goals; an update of the FCC’s universal service and pole attachment policies; and an initial focus on extending broadband facilities to unserved areas and underserved populations.

Also this week, Representatives Joe Barton [R, TX-6] and Cliff Stern [R, FL-6] sent a letter to NTIA, RUS and the FCC about the broadband stimulus funds. You should read the letter, but some of the key points are:

• Stimulus funds should go where broadband mapping has been completed
• Funding should go to the unserved over the underserved
• We should stimulate demand rather than supply
• These efforts should be technologically & competitively neutral
• We should fund economically efficient projects

Today, we started trucking equipment over to the Washington Convention Center here in D.C. A crew will start setting up our Broadband Nation exhibit over the weekend (see this previous post).

Broadband Nation is our 20,000-square-foot interactive exhibit at The Cable Show.  This exhibit will demonstrate the many ways in which broadband technology has changed the way Americans live, work and play.  It’s a hands-on opportunity to experience a wide variety of innovative new technology products and services available both now and possibly in the future for the home, school, and office, as well as specialized applications for medical centers, schools, and retail and entertainment outlets, among others. Broadband Nation seeks to capture in tangible ways how broadband has, and will, alter the everyday life of Americans; the exhibit will provide a good rationale for the broadband stimulus funding.

Next week, there will also be a couple sessions at The Cable Show that will focus on this issue.

• Wednesday, April 01, from 3:00 – 4:15 p.m., the session “21st Century Communications Policy: The Role of the States” will feature a conversation with State Public Utility Commissioners examining (like it says in the title) the states’ role in this process.
• Friday, April 03, from 11:00 a.m. – 12:15 p.m., the session “If We Build It, Will They Log On: Barriers to Broadband Adoption and Use” will look at how to drive adoption of broadband applications within the medical, education, safety and environmental/energy sectors.

• Lawmakers See Challenges for TV Transition (WaPo)
• Early Digital-TV Switch Has Flaw: Viewers Could Lose Certain Channels on Permanent Basis (WSJ)

Some viewers had issues in Wilmington with over-the-air reception of the new DTV signal; some had problems setting up converter boxes with their analog TV sets.

NCTA President & CEO Kyle McSlarrow had a little different perspective, as he testified at that hearing. He focused on the issue of retransmission consent and how it would be effected by the transition. This FCC fact sheet covers the details, but suffice to say that retrans (and the related term “must carry”) refer to how cable operators can carry broadcast stations.

Here is some of the coverage of his testimony:

• Retranmission Deals May Get Derailed by DTV Transition, Cable Operators Warn (TV Week)
• McSlarrow: Retrans Uncertainty Creates Cable ‘Storm’ (MediaDailyNews)
• DTV “quiet period” debate gets noisy in Congress (Ars Technica)

Here is a link to the text of McSlarrow’s comments and I’ve embedded the audio below (which runs just under six minutes).

To help you understand this, you need to understand that retrans and must carry play a critical role in ensuring you can see your local broadcast stations as part of your cable lineup.  Some of the existing deals will lapse around the end of the year, right before the Feb. 17 transition date.

Last month, the NAB Board of Directors pledged to identify a Retransmission Consent Quiet Period. NCTA issued this statement:

“In recent months, we have discussed with NAB the need to recognize the potential for consumer confusion and disruption involved with retransmission consent disputes that might arise as we approach the broadcasters’ digital TV transition on February 17, 2009. We appreciate NAB’s acknowledgment that this is a very real concern, and continue to support efforts to minimize potential consumer confusion through the adoption of a quiet period. But the reality is that many outstanding retransmission consent agreements expire by the end of 2008. Any voluntary quiet period that does not begin before the agreements actually expire – or which is too brief to preclude potentially confusing messages about broadcast carriage during the time of the actual DTV transition – represents the illusion of a commitment and does not serve the consumer.”