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State of California / Public Utilities Commission
San Francisco
M E M O R A N D U M

Date:September 18, 2009

To:The Commission

(Meeting of September 24, 2009)

From:Helen M. Mickiewicz, Assistant General Counsel

Subject: Filing of Reply Comments in Response to FCC’s Notice of Inquiry Concerning Deployment of Advanced Telecommunications Capability Pursuant to Section 706 of the Telecommunications Act of 1996, as amended by the Broadband Data Improvement Act.

RECOMMENDATION: The CPUC should file comments on the Federal Communications Commission’s (FCC) Notice of Inquiry (NOI) issued August 7, 2009, seeking comment on whether broadband facilities and/or services are being deployed to all Americans in a reasonable and timely fashion. The FCC has joined this NOI with its proceeding to develop a National Broadband Plan.[1] Staff recommends that the CPUC’s comments address a short list of issues of key concern to the CPUC regarding definitions, state access to broadband data, data and geographic granularity, the development and timing of benchmarks, and the status of satellite providers of broadband in FCC data collection. Comments were filed on September 4, 2009. Reply comments are due October 2, 2009.

BACKGROUND: Section 706 of the Telecommunications Act of 1996, as amended in relevant part by the Broadband Data Improvement Act (BDIA), Pub. L. No. 110-385, 122 Stat. 4096 (2008)[2] requires the FCC to initiate annually a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans. The FCC must determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. The term ‘‘advanced telecommunications capability’’ is defined by statute, without regard to any transmission media or technology, 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. If the FCC makes a negative determination about broadband deployment, it must take immediate action to accelerate deployment. This NOI is the FCC’s sixth inquiry pursuant to § 706 Inquiry, with the most recent prior inquiry having occurred in 2008. After all five of the past inquiries, the FCC concluded that advanced services were being deployed in a reasonable and timely fashion.

Subsequent to the 2008 inquiry, Congress expanded the scope of the § 706 inquiry requirements, and mandated that the FCC develop a National Broadband Plan by February 2010. In addition, the FCC expanded the scope of information that broadband providers must report biannually to the FCC on Form 477. Given these changes in data collection and the need to develop a national plan, the FCC states in this NOI that it wants to begin this Section 706 inquiry “on a clean slate.”

Specific issues incorporated into this NOI include how to define “advanced services” and “broadband”, and given those definitions, what data is needed (NOI ¶¶ 34-42); how availability should be defined and the appropriate data collection for that definition (NOI ¶¶ 42-49); the impact of new technological development on broadband deployment (NOI ¶¶ 50-51), the reach and timeliness of deployment, including the appropriate ways to measure geographic deployment and availability (NOI ¶¶ 52- 63), what the FCC can do to accelerate broadband deployment (NOI ¶¶ 64-66), and actions the FCC might take to improve its on-going broadband data collection “to ensure that, in the future, [it]will have rich information about broadband to inform [its] policymaking activities, to support the activities of other agencies and other levels of government, and to provide to consumers, researchers, and industry about the state of broadband in our nation.” (NOI ¶ 67).

SPECIFIC RECOMMENDATIONS: Staff proposes that the CPUC file Reply Comments on certain specific questions raised in the NOI, and that the CPUC’s comments address the following:

  1. The FCC should not continue to use subscribership data as a proxy for broadband availability; more granular data on actual availability is being gathered pursuant to the BDIA and National Telecommunications and Information Administration’s (NTIA) State Broadband Mapping Program.
  1. The FCC should look to the data collected by the revised Form 477, and the data being made available to the NTIA as part of the Recovery Act’s Broadband Technology and Opportunity Grant Program (BTOP) and NTIA’s state mapping efforts to guide the definitions of broadband, and served and unserved areas. Such data will inform the FCC what consumers consider to be acceptable/preferred broadband services and speeds, and will reflect changes in technology and consumer needs.
  1. The FCC should share with state commissions, on a timely basis, the raw data on broadband availability and subscribership it receives from broadband providers.
  1. In defining a “geographic area” for purposes of Section 706 Reports, the FCC should use the most granular geographic area available from the NTIA data collection, that is, Census Blocks for blocks 2 square miles and smaller, and Street Segments for larger blocks.
  1. The FCC should not defer assessment of the level of deployment and demand for broadband services until after benchmarks are established for the National Broadband Plan – rather, assessment of the data regarding demand and deployment should come first and inform the development of benchmarks.
  1. The FCC should include the broadband services offered by satellite providers when determining whether a given area has access to broadband services, and should collect availability and connection data by speed tier for that purpose.

Contributing Staff: Michael Morris – Communications Division (MMO, 3-2112); William Johnston – Communications Division (WEJ, 3-2124)

[1]In the Matters of 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 and A National Broadband Plan for Our Future; GN Docket No. 09-137; GN Docket No. 09-51; rel. August 7, 2009 (NOI).

[2]See 47 U.S.C. § 1301 et seq.