FRED UPTON, MICHIGAN 
CHAIRMAN 
ONE HUNDRED FOURTEENTH CONGRESS 
FRANK PALLONE , JR ., NEW JERSEY 
RANK ING MEMBER 
<!ongress of tbe Wnfteb ~tates 
~ouse of l\epresentatibes 
COMMITTEE ON ENERGY AND COMMERCE 
2125 RAYBURN HousE OFFICE Bu1LDING 
WASHINGTON, DC 20515-6115 
M ajority (202) 225- 2927 
M ino rity (202) 225- 3641 
February 5, 2016 
The Honorable Tom Wheeler 
Federal Communications Commission 
445 12th Street, S.W. 
Washington, DC 20554 
Dear Chairman Wheeler: 
The Communications Act requires the FCC to assess and report on the state of broadband 
deployment, the level of video competition, and the level of effective competition in the nation's 
mobile wireless market. Since 2011, it appears that the Commission has applied inconsistent 
definitions and analyses in making those determinations. Those reports have then been used to 
justify Commission actions to intervene in seemingly competitive markets. Despite the plain 
language of the Communications Act, the FCC's actions seem to benefit specific classes of 
competitors and do not promote competition. This behavior concerns us. 
In the Telecommunications Act of 1996, Congress directed the FCC to study and report 
annually on the availability of "advanced telecommunications services." Specifically, Section 
706(b) requires the FCC to conduct an annual inquiry concerning the availability of "advanced 
telecommunications services" and determine whether such services are being deployed to all 
Americans in "a reasonable and timely fashion." Congress has also directed the FCC - in the 
event the FCC concludes that advanced telecommunications services are not being deployed in a 
reasonable and timely fashion to all Americans - to take immediate action to accelerate 
deployment "by removing barriers to infrastructure investment and by promoting competition 
in the telecommunications market (emphasis added)." The plain language of Section 706 clearly 
states that the FCC should rely on the private sector to spur deployment - and that the FCC 
should help incent private investment by removing barriers and promoting competition. 
Prior to 2010, the FCC had found in its Section 706 reports that broadband deployment 
overall was reasonable and timely, although much work still needed to be done to promote 
deployment for all Americans. Yet in a 2010 party-line vote, the Commission changed its 
definition and raised the threshold speeds for what services qualify as broadband. As a direct 
85
Letter to The Honorable Tom Wheeler 
Page2 
result of its new definition, the FCC concluded that broadband was not being deployed in a 
reasonable and timely fashion. 
Under your leadership, the FCC did the same thing in January 2015 when it adopted the 
2015 Broadband Progress Report. This time, the agency increased the minimum speed for 
broadband six-fold- from 4 Mbps downstream and 1 Mbps upstream to 25 Mbps downstream 
and 3 Mbps upstream. Immediately, systems that were considered broadband during the period 
of the report, were now excluded from being counted. Not surprisingly given the newly minted 
definition of broadband, the FCC concluded on a party-line vote that broadband was not being 
deployed in a reasonable and timely fashion. 
This new definition of broadband gave Americans three different :flavors of Internet 
access: dial-up, broadband over 25 Mbps, and other Internet access that is not broadband by the 
FCC's definition. This construction proved quickly inconvenient for the agency and lead to yet 
another definition of broadband to suit the Commission's regulatory ends. Rather than rely on 
the 25/3 Mbps standard adopted in January, the FCC chose an amorphous, subjective definition 
of broadband to regulate a broader set of services under its February 2015 Open Internet Order. 
Instead of uniformity of definition, the Commission has instead made broadband speed a 
variable in the regulatory equation. This represents the latest in series of troubling actions that 
distort- or outright ignore -the FCC's requirements to produce honest, data-driven reports to 
inform policymakers and the public. 
For example, the FCC is required by law to report annually on the state of competition in 
the wireless market. Starting in 2010, the agency determined that it was too difficult to define 
effective competition in the mobile wireless market, and stopped making any competitive 
determination at all. Last month, the agency again failed to determine whether the wireless 
market is effectively competitive. In fact, recent studies show that 80% of Americans have a 
choice of five or more wireless providers. 
Moreover, the agency's claimed inability to define effective competition in the mobile 
wireless market stands in stark contrast to its approach to the video market, where the 
Commission recently adopted a presumption that cable operators are subject to effective 
competition. In the video market there are two nationwide providers and myriad local and 
regional providers. Whereas in the mobile wireless market there are four nationwide providers, 
more than one hundred regional providers (some of whom have overlapping coverage areas), and 
non-facilities based optfons that also provide retail competition. Interestingly, the FCC failed to 
present any evidence that the video market is less complex than the market for mobile wireless 
services or offer any data or analysis to justify treating "effective competition" differently in 
these two communications.markets. 
Just last week, the agency issued its annual Broadband Progress Report at its January 28, 
2016 Open Meeting. In it, the FCC again concludes that "advanced telecommunications 
capability is not being deployed in a reasonable and timely fashion to all Americans." The lead 
factor supporting your conclusion is that "[a]pproximately 34 million Americans still lack access 
Letter to The Honorable Tom Wheeler 
Page3 
to fixed broadband at the FCC's benchmark speed of 25 Mbps for downloads, 3 Mbps for 
uploads." 
To help us understand the FCC's decision-making and the impact of the FCC's shifting 
definitions of broadband and effective competition, we request your responses to the following 
questions no later than February 19, 2016: 
1. Please describe how the Commission has taken action to accelerate the deployment of 
broadband by removing barriers to infrastructure investment or promoting 
competition: 
a. When the FCC changed the definition of broadband in 2010, what barriers to 
infrastructure investment were removed and how did the change promote 
competition? What specific improvements to broadband acceleration resulted 
from the FCC's actions? 
b. In light of the Commission's conclusion that 25 Mbps broadband is not being 
timely deployed, what "immediate action" are you prepared to take to remove 
barriers to infrastructure investment and promote competition? Please describe the 
specific steps and your proposed timetable. 
2. Please explain why the FCC settled at 25 Mbps downstream/3 Mbps upstream for the 
definition of broadband, including the facts about the market that led you to conclude 
that 25 Mbps is the appropriate minimum threshold to qualify as broadband. Please 
explain what specific factors led you to conclude that 4 Mbps downstream and 1 Mbps 
upstream was insufficient. 
3. Please identify all contexts and instances in which the FCC defines broadband. Why 
does the Commission not have a definition of broadband that it applies consistently? 
4. Please describe in detail why the Commission does not have a definition of 
competition that it applies consistently? How many choices in a given market would 
lead the Commission to find mobile wireless service effectively competitive? Please 
explain in detail why the Commission continues to fail to make a competitive finding 
for the wireless market? 
We appreciate your assistance with these requests and ask for your response no later than 
ten days from the date of this letter. If you or your staff have any questions, please feel free to 
contact David Redl of the Committee staff at (202) 225-2927. 
Thank you for your cooperation in this matter. 
Letter to The Honorable Tom Wheeler 
Page4 
Sincerely, 
Subcommittee on Communications and Technology 
cc: The Honorable Frank Pallone, Jr., Ranking Member 
The Honorable Anna G. Eshoo, Ranking Member 
Subcommittee on Communications and Technology