Clyburn, Pai Trade Fire on Her Tribal Order Partial Dissent; Democrats Dissent on 706 Report

Clyburn and Commissioner Jessica Rosenworcel dissented on a broadband report under Telecom Act Section 706. They issued statements ahead of the report, which was released late in the day. The FCC, having made policy changes over the last year, "is now encouraging the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans," said the report in docket 17-199. "That finding, however, does not undermine our continued commitment to closing the digital divide. Far too many Americans remain unable to access high-speed broadband Internet access, and we have much work to do if we are going to continue to encourage the deployment of broadband to all Americans, including those in rural areas, those on Tribal lands, and those in schools and classrooms."

“When it comes to the FCC’s commitment to expand tribal broadband, what’s the hold up?" said Clyburn in her statement on the tribal USF order. "Chairman Pai repeatedly claims that closing the digital divide is among his top priorities, yet nearly a year has elapsed since a proposal was first put forward to help improve connectivity for Native communities and still no action. ... With a substantial percentage of those living in rural areas of Tribal lands lacking high-speed broadband, the time is now for an up or down vote that will ensure that these communities do not lose the connectivity they desperately want and need.”

Pai said he circulated a February draft order to "increase federal funding for broadband infrastructure on Tribal lands" because deployment there "is difficult" and "operational expenses are typically higher than on non-Tribal lands." He said there were three votes in favor of the item for months. “So what was the hold up? Despite having formally voted for the item, Commissioner Clyburn’s office privately and repeatedly threatened to withdraw her critical third vote in favor of the order if we moved to bring this item across the finish line. It is worth noting that her threat had nothing to do with what is actually contained in the order."

"Then, this morning, she carried through on that threat and withdrew her critical third vote in favor of the order," Pai said. "If Commissioner Clyburn believes as I do that the commission should take action to expand broadband access on Tribal lands, the way forward is simple. Instead of quietly changing her vote on a Friday morning and issuing a Friday afternoon press release designed to shift the blame, she should cast her vote in favor of an order that will increase federal funding for broadband infrastructure on Tribal lands.”

Clyburn wasn't through. “Maybe I missed it. I thought my role as acting [FCC chairwoman] ended in November 2013?" said her second statement. "But if the authority implied by Chairman Pai’s statement is one I possess, then the Tribal broadband item would be adopted by close of business today. Correction: I did not withdraw my vote. My vote on the initial item was cast seven months ago and in case you missed it, I’m currently in the minority. I’m the holdup? How is voting to approve the entire text of the item but dissenting in part, as I did today, because it did not go far enough to support our tribal communities, delaying the vote?”

The Pai camp also followed up. “Commissioners cannot vote to approve the entire text of the item but dissent in part as Commissioner Clyburn is claiming to have done," emailed a spokeswoman. "A vote to dissent in part indicates that a Commissioner disagrees with one or more specified portions of the item. Commissioner Clyburn’s statement and course of conduct is therefore baffling. If she supports the text of this Order and expanding broadband deployment on Tribal lands, she should vote to approve.” Under FCC practice, items with three votes in favor aren't released until all commissioners vote.

Rosenworcel voted to partially approve and partially dissent from the draft tribal order in October, an aide told us. The aide said Rosenworcel supports the tribal operational-expense relief, but believes the item should go further and include a tribal broadband factor (TBF) to increase USF support for deployment on tribal lands. Her request that the TBF be added to the order was denied, the aide said. The offices of Commissioners Mike O'Rielly and Brendan Carr didn't comment.

Pai recently circulated a draft rate-of-return USF order and NPRM that would provide over $500 million in new USF support and seek comment on incorporating a TBF (see 1801160040).

706 Report Dissents

Rosenworcel said "the future belongs to the connected," in her 706 dissent. "This report concludes that in the United States the deployment of broadband to all Americans is reasonable and timely. This is ridiculous -- and irresponsible. Today there are 24 million Americans without access to broadband. There are 19 million Americans in rural areas who lack the ability to access high-speed services at home." To call these and other such "numbers a testament to our national success is insulting and not credible," she added.

The report's findings "misinterpret 'the plain text of section 706,' endorse a self-serving and amorphous measurement of 'progress,' make changes to critical factors in its analysis, and rely heavily on projected deployment following actions taken by the FCC in 2017," said Clyburn's dissent. "This report is biased, flawed, and woefully incomplete. The statistics are glaringly clear: persistent digital and opportunities divides remain for far too many." There are "tens of millions of our fellow citizens who lack access to broadband," she said.

"Instead of grappling with this unfortunate reality, this report blatantly suggests that Congress did not intend for the FCC to meet a rigid requirement that each and every American be served," Clyburn said. "Pardon me? Congress’ intent when it comes to these reports could not have been any clearer." Section 706's language is plain, she said. "Similarly, the Broadband Data Improvement Act of 2008 requires the Commission to consider a plethora of factors and 'compile a list of geographical areas that are not served by any provider of advanced telecommunications capability.' Those statutes clearly mandate that the Commission determine if broadband is being deployed to all Americans."