Is FCC violating process again with Net Neutrality action? Or just being Shortsighted and Stupid?

The first two FCC attempts to impose some "network neutrality" rules were vacated by the Federal Courts because the rulemaking was based, in large part, on imputed authority that the FCC did not statutorily have (see earlier post here), further supported by evidence that the FCC had violated its own procedures for rulemaking.  At the time of the second Court decision, many policy folks (myself included), commented that if the FCC wanted to move forward with Net governance and regulation, the best approach was to base a claim for regulatory authority under Title II of the Communication Act - which does cover telecommunication networks.
With the FCC deciding that it will issue a rulemaking addressing Network Neutrality this Thursday, without publicly releasing the actual rules being considered, the FCC would again be clearly violating the spirit, if not the letter of its own (statutory) rules on due process.
The FCC, when considering new rules and regulations, is supposed to undertake a multistage process that starts with a public Notice of Inquiry, a period to allow public (and industry comment), then a Notice of Proposed Rulemaking that outlines the proposals, followed by more opportunity for public comment.  Normally, if the FCC wants to consider substantive changes to proposed rules and regulations, it posts a Further Notice outlining the changes, and offers an additional period for public comment.
Tom Wheeler, the current head of the FCC, argues that the FCC has already gone through several NOIs, NPMs, and public comment periods.  However, the proposed regulatory framework for those appears to be totally different from what is to be acted on this week.  While the FCC doesn't have to refile Further Notices for every little change in the rules, because the proposals that had been discussed are substantially different from those to be voted on, this case clearly violates the both the spirit of the rulemaking process in that it hasn't allowed any time for public review and comment on what seems to be a wholly different set of rules and arguments than what had been previously proposed and discussed.  In addition to tossing claims of being "transparent" onto the growing dustheap of broken promises of transparency by this administration.  (In fact, as a Senator in 2007, Obama called the FCC's attempt to pass rules without full public disclosure and opportunity for public comment "irresponsible.")  Furthermore, the FCC is supposed to be an independent regulatory authority, not one that would toss aside several years of proposed rulemaking and public discussion to (allegedly) adopt - in full and without review, discussion, or amendment - a plan written by political operatives in the White House.

Regardless of the ethics of the current Chairman's behavior, and the potential authority Title II provides for regulating telecommunication networks, bringing the Internet under Title II is not necessarily reasonable or appropriate - in large part because of the statutory language in the 1934 Communication Act and the 1996 Telecommunication Act.
The 1934 Communication Act gave the FCC regulatory authority in two areas: Title I dealt with radio transmissions (including broadcasting), and Title II dealt with, basically, telephone networks.  More specifically, it was designed to deal with the existing local monopoly wired, switched, telephone system.  (The FCC was granted oversight of cable systems - redefined as multichannel video delivery services - by the 1984 Cable Act).
With the rise of the first use of wired telecommunications for computer communications in the late 1950s and 1960s, the FCC examined the question of whether computer networks should be regulated under Title II.  They reached a conclusion that it would not fall under Title II for several reasons: the computer network (later expanded to information) services typically did not own and run the actual wired networks they employed, but rather leased lines from telephone companies (the separation of service from network is explicit in FCC definitions of those terms.

There is a hard and fast statutory line separating the information services that utilize telecomm networks, and the telecomm-based distribution networks that deliver those services.  The current language would seem to explicitly exclude Information Services from falling under Title II. Also, on the technological side, the developing computer networks and information services used quite different technologies than telephony, and so the part of Title II that deals with technical standards would be largely irrelevant (if not applied) and inappropriate (if applied).  But most importantly, the FCC felt that trying to set standards and apply Title II regulation to computer networks and information services would restrict developments and innovations by imposing a governance structure that favored certain uses over others.

The main philosophy of Title II's network regulatory approach is that networks should act as common carriers (a regulatory philosophy borrowed from railroads and freight services). The essence of common carrier status is that the network should not discriminate among its users - that they shouldn't give favored treatment to one user over another. 

 One of the widespread fallacies in Network Neutrality discussions is that common carriers can't treat users differentially (thus everyone should have the same rate for internet connectivity). Actually, there's a long history of permissible differential treatment, as well as a long history pointing out the social benefits that can be acheived through appropriate cross-subsidies. Telecomms can treat users in different localities differently, and more critically, can differentiate on the basis of level of service. All they need to do is show that the costs of providing a particular type of network connection are different (a content-neutral rationale). The FCC has even allowed differential treatment for certain general classes of services (911, toll-free numbers, added-charge numbers). Furthermore, the 1996 Telecommunications Act removed many aspects of telecomm regulation from FCC oversight.

 In addressing the Title II approach, policymakers and pundits need to recognize that i) Title II is largely limited to telecommunication network operators, and the existing statutory language is not readily, or easily, extendable to Information Services and most ISP operations; ii) many of the aspects of the 1934 Act that regulators want to rely on for the new Internet rules have been superseded by the 1996 Act; and some issues are addressed by other laws and statutes (for example, copyright and privacy laws that expressly address ISPs, Information Services, and digital network operators). Many of the areas and concerns that Network Neutrality proponents are primarily concerned with may not be covered by a simple extension of Title II regulatory authority to the Internet.

While Title II can be a better foundation for asserting regulatory authority, just claiming that "We've changed our minds, information services and ISPs fall under Title II" is not likely to pass judicial review - because what they do doesn't fit the existing statutory language. Doing a sweeping assertion of authority is what got the FCC in trouble in previous attempts, and going the Title II route without serious review - if the action isn't quickly overturned - is going to create a virtual minefield of implementation problems and legal challenges - with the FCC and the Courts having to then decide which of the 100+ pages of telephone regulations should apply to the Internet, its backbone network providers (who already effectively act as common carriers anyway), ISPs (many of which are a mix of network operators and information services), and the Information Services that provide the content and services to users.  Should Universal Service apply to ISPs? Should ISPs be subject to the specific taxes applied to telephony (including one designed to help retire the Spanish-American War debt - which was paid off about 100 years ago - but still shows up on your telephone bill). Should the FCC's authority over pricing in the Internet apply only to interstate and international connections (the only price authority the FCC has over telephone rates under Title II in the 1934 Act, and which was sunseted out in the 1996  Act - leaving the FCC without statutory authority to regulate telecomm (ISP) rates and services)?

In other words - going the Title II route really needs extensive discussion of the proposed rules and policies to work out the problems and kinks that would be associated with that approach.  But the current FCC Chair and Democratic Commissioners seems determined to take the easy and quick approach of simple proclamation and promulgation of a massive set of new regulations, rather than doing the smart thing of working out the details and gaining some consensus from the various stakeholders that would be impacted by the new rules.  Or even considering if there is really any need for a massive overhaul and imposition of governmental (possibly politicized) oversight and control of a significant, and efficient major sector of the economy, and an increasingly vital source of information by both private and public sectors.

As I said with the last two FCC attempts at grabbing Internet oversight - this is too important, and too critical, to take short cuts.  If the FCC is going to do this, they need to do it the right way - with true transparency and plenty of opportunity for the public to point out the problems and pitfalls that always comes with trying to set uniform rules for very complex systems.  And first asking the most important question - do we really need to impose any kind of regulatory structure on the an efficient, innovative, and highly flexible Internet and Information Services sectors?

FCC sets new "Broadband" standard at 25 Mbps

Yesterday the FCC formally approved a long-awaited increase in its definition of what counts as "Broadband" Internet connectivity.  The Commission, in giving formal approval to release its annual report on the status of broadband, gave implicit approval to that reports change in what it considers to be broadband service.  The old standard was 4 Mbps downstream and 1 Mbps upstream - while the new standard is 25 Mbs downstream and 3 Mbps upstream.
Critics have long argued that the FCC's 4 Mbps standard was outdated - it was established well before video streaming usage exploded, and 4 Mbps isn't sufficient bandwidth to stream a TV signal uninterrupted by delays.  The industry itself established an informal standard of 20 Mbps as needed for broadband connectivity to homes years ago.  That level of bandwidth was based on the ability to live stream 2-3 separate video streams to multiple devices, while leaving enough capacity for second screen data and other Internet usage.  The EU is using the 20 Mbps standard for its policy goal of achieving universal broadband access.
The definition of minimum broadband standards is critical to determination of access and availability of broadband to consumers, as well as determining whether there is effective competition in broadband markets.  Its been thought that the FCC continued to use its 4 Mbps standard to inflate national availability numbers to seem more on a par with availability numbers in other countries.  While that may have been a minor concern, its more likely that they stuck with 4 Mbps because that was the data capabilities of 3G cellular services and the small satellite-based data services.  Inclusion of 3G cellular and satellite data coverage provided both near-universal accessibility, and competition to wired (land-based) cable and telecomm providers for about 90% of Americans.
 The new 25 Mbps standard basically excludes those (but is within 4G cellular standards), and reflects the reality that 17% of the U.S. population doesn't have access to data services meeting the new standard.  More critically, from a policy perspective, is that exclusion of satellite data services (which currently don't provide services at that speed yet) leaves large swaths of rural America without "broadband" access.  The new report determines that 53% of rural population (63% of those living on tribal lands) won't have access to data services meeting the new standard for broadband.  Similarly, applying the new standard in considering whether there is effective competition for broadband service providers means that only 37% of Americans have access to two or more broadband services.  Excluding 3G service providers is the primary cause for the drop in "competition." Also, not all of the "4G" services being offered in the U.S. meet the formal international standards - some peak out at 21 Mbps downstream, which qualifies as broadband under EU standards (20 Mbps) but not the new US standard (25 Mbps).
 While the standard for "broadband" in the U.S. certainly needed changing, whether it should be at 20 or 25 Mbps is somewhat debatable in the short term.  In the long term, there's already discussion of what the next standard should be (mostly centered for now at 50-100 Mbps).  Give it a few years, and we'll need to redefine "broadband" again anyway.

Sources -  FCC Says Broadband Now Means Speeds Of 25 Mbps,  OnlineMediaDaily

FCC's Net Neutrality Rules Vacated - Are They Needed?

A Federal appeals court has vacated the FCC's most recent attempt to impose "Net Neutrality" rules, ruling that the FCC overstepped its formal authority in creating the rules in the first case.  While some public interest groups expressed shock and outrage, the ruling was hardly unexpected.  After all, the Federal courts had made essentially the same ruling on the FCC's first set of "Net Neutrality" rules, which the FCC promptly ignored in pushing forth the second set, using essentially the same argument despite some language changes.

So what does this mean?  Well, the special interest group "FreePress" says this could be the end of the Internet as we know it.  But what the end of the current "Net Neutrality" rules (which were largely stayed and unenforced during court proceedings) means is that we're back to the Internet as we know it - the goal of the rules was to change how the Internet worked, after all.  But "FreePress" is right in its call for the FCC to do it right the next time - to actually work within its existing authority, or to seek additional authority from Congress if needed, rather than creating a regulatory framework by administrative fiat (sadly a widespread habit within this administration).

As I've posted before (here and here), I've been skeptical of the need for the currently expressed vision of "Network Neutrality" as preventing ISPs, operators, etc. from discriminating against content (thus sticking it to the "evil" and "greedy" cable and telecomm operators).  Under the historic common carrier regulatory framework for telecommunications, operators could not refuse to offer services or discriminate among users on a content basis.  But the FCC had identified ISPs as information services, which were not subject to common carrier regulation.  While common carrier status was, strictly speaking, a basis of telephone FCC regulation and not computer communications (or information services), I think the common carrier argument is easily extensible since the two networks are essentially converged today.  Redefining ISPs as telecomm common carriers may well take some time and a fair bit of legal wrangling - but would provide the regulatory authority that the FCC needs to prevent unfair discrimination in service.

That may not be enough for some Net Neutrality proponents, who would like to also prevent operators from offering additional services (guaranteed speeds, etc.) at different prices.  That's more problematic in my mind, limiting exploration and diffusion of new services and content - not to mention making it impossible to cross-subsidize services and enable additional infrastructure investment, things that have helped users.

And you also have to worry about the end game of absolute equality - which inevitably can be achieved only at the lowest common denominator.  Do we want a rule that insists that all ISPs and telco operators can only offer one level of service at low prices - at whatever speeds are universally available in the national grid?

So FCC, if you're going to push for Internet regulatory authority and actually try to regulate normal operations, please try to do so correctly.  With proper authority, and with due consideration of that the actual impact of your regulations will be (rather than the political goals you hope to achieve).

Sources -  Verdict: Net Neutrality is Dead... for now,  FreePress.net
Federal appeals court strikes down net neutrality rules, Washington Post

FCC Votes to End UHF Discount (finally... sort of)

The FCC has had a policy for decades giving owners of UHF broadcast television stations a 50% discount in terms of applying market size to the national ownership caps.  That is, owners of a "UHF" station only counted have of their reach in terms of a broadcast group's total audience reach.  An all-UHF group owner could theoretically have an actual audience reach of 78%, yet still fall within the FCC's national ownership limits of 39%.  This has let a dozen or so of the largest TV station
groups and media conglomerates have an effective reach of 40-65% of US TVHH while technically remaining under the national ownership cap of 39%.  While ending the discount, the FCC will grandfather in those groups, and allow others with station deals in progress to retain the discount (allowing them to continue to bypass the national caps).  So the big guys get to continue violating the official cap limits. That's the "sort of" part of the headline.

The "finally" part is that the policy is a legacy of old technological limits that have long since been bypassed.  The root of the discount is the fact that in the 1950s and 1960s, UHF stations in the U.S. were at a serious technical disadvantage to VHF outlets.  UHF signals didn't go as far, and required much more electrical power for transmissions.  In the 50s and early 60s, most TV sets sold in the U.S. didn't even have UHF tuners - and it wasn't until the mid 70s that UHF tuners in TV sold in the U.S. had to meet the same quality standards as VHF tuners.  All of this put UHF stations competing with VHF stations in their market as a serious competitive disadvantage.  In fact, in research I did for my dissertation, I was able to estimate that UHF stations had a "discount" of 50% in terms of the money they were able to get for advertising spots, even with roughly equal audience sizes.
  However, by the late 70s and early 80s, things had turned around for UHF stations - improved standards in TV sets narrowed the viewing difference, and the growth of cable systems removed a lot of the coverage differences.  By the early 80s, my dissertation went on to show, that UHF financial disadvantage in terms of advertising rates (discount) had virtually disappeared.
  Still, the FCC wanted to encourage greater use of UHF frequencies (many remained unclaimed until the FCC started taking back large sections of the UHF TV bandwidth).  When the FCC shifted ownership focus from the number of stations to national reach, it seemed to make some sense to apply a "discount" to UHF to provide an incentive for large owners to start purchasing UHF stations or getting new licenses and putting new UHF stations on the air.  The 50% figure, like many FCC policy numbers, seemed to come out of thin air - although its possible someone in the agency read my dissertation and pulled the number from there (as out of context as that would be).
  However, then came the shift from digital to analog - a shift that required stations to start broadcasting on different channels, and mostly in the UHF band.  But the UHF discount - a discount remember that was supposed to be based on technological disadvantages - was still given, but was based now on the original frequency allocation, not on the actual broadcast channel used.  Initially, an argument can be made that the FCC just didn't want to deal with the additional dislocation of having to refigure ownership reach (or deal with stations pushing for changing their new allocations)  so they continued to apply the discount to the original channel assignment.
   Thus the FCC kept the old policy in place, despite being applied to channel allocations no longer in effect and justified by "technological disadvantages" that had disappeared long ago.
  So it should be no surprise that they finally ditched it - after the industry's been expecting it since 1998, and certainly since 2009 (when the digital transition was completed).  Although, as noted above, with the grandfather clause, they really haven't.  And with the TV national ownership caps under regular review and court challenge, it's not likely to really change anything in terms of concentration in the broadcast TV industry in the long run.

  To recap, the FCC created a policy in 1985 to allegedly compensate for technical disadvantages that had virtually disappeared a decade earlier, kept it in place for two decades despite knowing there was almost no remaining disadvantages, and for about a decade after the shift to digital began.  With the shift to digital, the new digital UHF allocations actually had a slight technical advantage in reach over VHF allocations, and yet the discount continued to be applied.  Moreover, it was not applied based on to the new allocated frequencies, but to the original analog channel allocations instead that were being phased out.  Now, five years after analog phase-out, the FCC is considering dropping the discount.  However, the FCC has decided it will not let owners apply the "UHF discount" in future purchases of stations, but won't require those who have used the discount to bypass ownership limits to actually come into compliance with those caps by selling off stations.

Sounds about right for government policy - create a solution to fix a problem that disappeared long ago, and continue to apply it to channel allocations that are no longer being used.  And even in "dropping" the policy, continue to allow those who took advantage of the policy to continue to evade the intent and letter of ownership caps.

Source -  FCC Proposes to Eliminate UHF Discount,  Broadcasting & Cable

CBS-TimeWarner battle continues - people notice

CBS and Time Warner Cable (TWC) have yet to reach an agreement on retransmission consent, and people are noticing.
  To recap, CBS and TimeWarner (as a cable operator) are required to regularly reach an agreement on the terms under which CBS's owned-and-operated (O&O) local broadcast stations are carried on cable systems in their broadcast areas.  During the last round of retransmission consent negotiations, reports indicate, CBS insisted on more money for carriage than Time Warner was willing to pay.  Under the 1996 Telecommunications Act, if agreement isn't reached within a certain time frame, the cable system is required to stop carrying the local station's signal.  As part of CBS's negotiating strategy, allegedly, was to also force Time Warner to pay higher carriage fees for CBS cable-only channels, Time-Warner dropped all of those channels as well.  CBS responded by cutting access to cbs.com (and the programs it provides access to) to all Time-Warner internet service customers.

The programming blackout extends to some 3.5 million homes in some of the largest TV markets in the US, and will inevitably have an impact on ratings as well as the value of the CBS and TWC brands.  CBS trumpeted that it remained in first place in Nielsen ratings for the first full week of the blackout, despite a small decline in total viewers.  But CBS shouldn't crow too much, it's top prime time show only grabbed a 1.4 rating and saw a 30% drop in viewing. (I'll note that August is traditionally a low viewing month, and that the ratings don't include the estimated 5 million people who get their programs online).

The impact on local station ratings - particularly for their local news programs - has been much more significant.  At LA's KCBS, viewership for their main local news programs fell 25-33% from the previous week; NY's WCBS saw 17% declines, and Dallas-Ft Worth O&O KTVT saw their news numbers fall 13-19% (depending on which news broadcast).  The declines are enough to trigger make-goods and is impacting last-minute ad sales.  Their is significant concern at the local level about continuing impacts, particularly if the blackout continues into the fall sweeps period (which traditionally determine local advertising rates).

That both parties are concerned about the impact of the blackout can be seen in some recent deals between CBS and TWC to temporary lifting of the blackouts - to carry the NY mayoral and comptroller campaign debates in New York, and offering the Tennis Channel during the U.S. Open Tennis championships.

This week, current FCC interim chairman Mignon Clyburn weighed in, expressing frustration that CBS and TWC haven't reached a settlement.  The FCC, though, has limited authority to intervene in negotiations or to order interim carriage of the signals in violation of current law.  Former FCC commissioner Michael Copps weighed in, arguing that CBS's actions may violate the FCC's Network Neutrality provisions.

“CBS is perpetrating an audacious violation of the FCC Open Internet ('net neutrality') rules... These rules guarantee consumer access to lawful content. They are designed to prevent just this sort of corporate censorship.”

Time Warner didn't go quite so far as to allege CBS wrongdoing, but in a filing with the FCC (which is looking into retransmission consent rules), they argued that CBS attempted to use the retransmission consent rules to "leverage the must--have nature of its broadcast network programming to force a multichannel video programming distributor (“MVPD”) to accept massive and unwarranted fee increases and oppressive carriage terms."

As I posted earlier, this ought to be fun to watch, unless you're a Time Warner customer and like CBS programming.

Sources - CBS tops ratings, but don't declare victory over Time Warner yet, Los Angeles Times

CBS stations' ratings drop as Time Warner Cable blackout continues, Los Angeles Times

Former FCC Commisioner Bashes CBS For Web Blackout, Daily Online Examiner

FCC filing on behalf of Time Warner Cable, FCC website

edited - fixed some language and grammar issues.

FCC Releases 15th Video Competition Report

Some highlights from the Executive Summary (I'll try to get back with fuller analysis later).


With this report, the FCC has distinguished three types of video channels

1. MVPDs -Multichannel Video Programming Distributors (Cable, DBS, and Telco cable), 
2. Broadcast Television Stations (over-the-air free broadcasting), and
3. OVDs - Online Video Distributors (any service delivering video over the Internet)

Between the last report's data collection (Dec, 2010) and this (June, 2012), there has been a slight growth in MVPD subscribers.  However, cable has continued to lose market share to DBS and Telco cable.

The push for 'TV Everywhere" has grown in the last two years, with an estimated 5.1% of the MVPD audience using it as of Sept 2012.

MVPD systems continue to shift from analog services to digital. Among the top 8 cable MSOs, more than half of their customers receive all-digital service.  DBS and Telco cable are already all-digital.  Larger cable MSOs are also experimenting with switched digital video, where only the channels being watched are transmitted to the home.

Roughly three quarters of US homes can receive and display digital signals; 43.8% have DVR capability; and there is increasing availability of video-on-demand access of recent content.

Less than 10% of US homes rely on over-the-air broadcasting for video access.  In contrast, viewing of video content from online sources (OVDs) is growing, with estimates that more than a fifth of US homes are "Internet-connected" - that is, capable of watching online video on a TV set.  The continued growth of OVD viewing is increasing Internet traffic in peak hours, to the point where ISPs are increasingly considering imposing bandwidth caps.

Source -  FCC Adopts 15th Video Competition Report, FCC report

Lobbyist to head FCC?

President Obama will nominate Tom Wheeler to become Chairman of the FCC, replacing Julius Genachowski.  Wheeler has acted as an informal advisor to the President in recent years, in addition to being a major fundraiser for Obama's campaigns and a paid lobbyist for the cable and wireless industries (both of which face serious regulatory issues from the FCC).
  As some public interest and industry groups commented, at least Wheeler has come real-world experience in the field, as a venture capitalist helping fund tech-based startups and stints with cable trade association NCTA and wireless (cellular) industry trade group CTIA.
"Tom Wheeler is an experienced leader in the communications technology field who shares the president's commitment to protecting consumers, promoting innovation, enhancing competition and encouraging investment," said an anonymous White House official who leaked the news yesterday.
  That certainly is the hope - but the appointment could also signal a return to the "industry-captured" FCC and the revolving door habits of top FCC officials leaving for lucrative industry jobs; or as an extension of the Chicago-style crony capitalism embraced by this administration.  At least Genachowski's immediate payoff is being filtered through the Aspen Institute think tank.
  As for candidate Obama's promise to keep lobbyists out of his administration, that expired long, long ago.

Source -  Obama to nominate Tom Wheeler as FCC chairman: official,  Digital Producer Magazine

FCC takes another stab at Indecency

Last year the U.S. Supreme Court overturned two cases where FCC imposed fines for indecency - but stopped short of ruling that the FCC actions were unconstitutional.  One case should have been pretty obvious, where the FCC suddenly found indecency in a case where it had already ruled was not a violation (after some astroturfed outrage).  But the biggest problem for the Court was the vagueness of the rules and definition of "indecency," and its possible conflict with First Amendment free speech rights.  That conflict is more likely to occur in the case of unintentional expletives or fleeting partial nudity,
  While the cases were under review, the FCC put a hold on handling any new allegations of indecency.  Considering that a Supreme Court ruling could have forced a reconsideration of any applied standard, the FCC's decision to delay review was reasonable.  But with the rulings in, and new guidance from the FCC's Enforcement Bureau, the FCC's been working on the backlog of 1.4 million complaints.  (After the FCC instituted a streamlined process for filing complaints online, groups could organize complaint filings, and for many incidents there are thousands of identical complaints - often from people who couldn't have personally heard or seen the "indecent" act.)  The FCC's Enforcement staff started by culling out complaints older than the statute of limitations, or beyond the FCC's authority.  (The FCC's authority over "indecency" only applies to radio and television stations - not cable or satellite networks or the Internet.)  As of last week, the FCC had resolved more than 70% of complaints.
  Still, there is concern that the "vague" standards might lead to further challenges, so the FCC is considering applying the indecency rules only to more "egregious" cases - taking the step of putting out a request for public comment on the proposed new rules.  Specifically, it's seeking public comment on how to treat the use of "expletives and brief non-sexual displays of nudity."  It can be a long process of proposed rulemakings and public comments, so don't look for a resolution until well after the President replaces the two departing FCC commissioners (including the Chairman, Julius Genachowski).

Source -  FCC mulls relaxing policy for TV indecency, The Hill
 

Internet speeds up in U.S.

  The FCC report indicated that the average subscriber speed in their sample was 15.6 Mbps in September, 2012 - an increase of 20% over the previous six months.  In addition, the FCC's volunteer (i.e. nonrandom) sample reported access speeds up to 75 Mbps, well into the range considered fast broadband.  While the nonrandom nature of the sample means that we shouldn't extrapolate reported results onto the general U.S. population, there's still strong indication that speeds are increasing, and broadband access is expanding.
   The focus of the FCC study is to examine whether internet access providers consistently reach the data speeds they advertise.  Cable companies did well, with average speeds reaching 99% of advertised speeds - but fiber optic providers actually exceeded advertised rates by 15% (average speeds were 115% of advertised speeds).  In contrast, more than half of older DSL providers had average speeds less than 90% of those advertised.  I should note that DSL is well on its way to becoming a legacy technology, largely unable to match the bandwidth and data speeds of fiber optic based wireless access providers (be they cable or telco fiber networks).  As such, I would not be surprised that DSL would occasionally deliver subpar performance.
  While the focus of the report was on wireline Internet access, the FCC did consider one wireless technology - satellites.  The report noted that a new generation of satellites offer significantly higher access speeds and improved performance.  They note that the new ViaSat-1 Ka-band satellite hosts more bandwidth than all other Ka-, Ku-, and C-band satellite data services in North America, combined.  As a result, satellite data services can provide 12 Mbps service to all areas of the U.S.  In fact, the FCC report shows that satellite data subscribers regularly achieve higher download speeds than advertised.  That satellite data services are offering broadband speeds is critical to goals of achieving universal broadband access, as it provides an option for rural areas unlikely to see wireline network expansion for years to come.

  The big news of the report, though, is that speeds are ramping up, and consumers are following,  At least 10% of subscribers in each of the April 2012 service tiers reported moving to a higher-speed service.  The movement is highest at the low end, with almost half (46%) of the sample with 1 Mbps or slower service in April 2012 moving to a higher-speed service.  A subset of the FCC sample also tracked data traffic, and found a correlation between service plan speeds and data traffic generated.  It's unclear whether that pattern is driven by greater speeds encouraging more data use, high data users migrating to faster service plans as they come available, or some combination of those and other factors.
  The graph of cumulative distribution of data traffic suggests some other interesting results.  First, that 10% of cable and fiber subscribers in that subsample generated at least 160 Gb of data traffic a month, as do 5% of DSL subscribers.  And that was after the researchers excluded users in the sample with very high consumption profiles, and subscribers of some very fast services with low subscription rates.  That is, you had those levels even after excluding the really high data traffic cases.  The other interesting result is the Satellite cumulative distribution curve.  The shift from a general curve to the two plateaus illustrates one of the current limitations of satellite data services - that their service plans tend to have fairly low monthly caps on traffic (beyond which costs go up substantially, or service is restricted).
  The FCC concluded that bandwidth speeds are continuing to advance, while actual performance showed some improvement, in terms of Internet access providers generally meeting their advertised standards.  Findings that were consistent with previous reports. Still, speeds are expected to continue to increase; In their conclusions, they note that a number of cable and fiber access providers are offering 100 Mbps or higher data plans in selected areas, and Google's 1 Gbps service in Kansas City.  The report also indicated that they plan on addressing one significant gap in their current approach, by taking a look at mobile broadband services.  With 4G offering the potential for high speed mobile broadband, and the FCC's recently announced goal of developing a new national mobile broadband service. the mobile segment will likely be an increasingly important segment of the broadband access market.

  As always, the report has a lot more detail, and if you want to check how your technology/provider grades out, go there.

Sources -  Web Users Pick Up Speed, ISP's DSL Service Sketchy,  Online Media Daily
2013 Measuring Broadband America: February Report,  FCC report