Section 706 - Promoting Access to Advanced Telecommunications Services: The FCC's Third Report on Broadband Deployment

Successes and Failures of the 1996 Telecommunications Act

Part One

Part Two

Part Three

Afterword

Does the Digital Divide Still Exist?

Appendix

Section 706 - Promoting Access to Advanced Telecommunications Services: The FCC's Third Report on Broadband Deployment - Inequitable Untimely and Unreasonable

by Allen S. Hammond, IV

Introduction

On February 6, 2002, the Federal Communications Commission issued its most recent report on the status of broadband advanced network and high-speed service deploy-ment in the United States. In its report, made in response to the Commission's ongoing mandate from congress, the Commission concluded that the current deployment of advanced network and high-speed services is reasonable and timely. The Commission's conclusion is contradicted by substantial evidence that current deployment efforts are inequitable, untimely and contrary to the public's interest for two reasons. First, deployment is inequitable when examined in the context of income, race, ethnicity and geography. Second, the new Commission's use of a methodology that obscures the magnitude of the inequitable and untimely deployment that exists is a transparent effort to sidestep the issue of reasonable and timely deployment.

The Commission's new membership may have unstated reasons for concluding that deployment is reasonable and timely. Whatever the Commission's underlying reasoning, it relies on a methodology incapable of discerning and documenting the actual extent and substance of deployment. As a result, the findings based upon the data derived from use of the methodology are unreliable and should not be used as a basis for making public policy. The future quality of life of far too many Americans hangs in the balance.

Congress has recognized that current advanced network deployment is untimely for rural, inner city, minority, small business and poor Americans. It has been widely recognized that Americans' access to available, affordable advanced network and high-speed services are increasingly essential to democracy, education, 2 health care, political 3 and economic empowerment, 4 not just entertainment. 5 This is so because government, educational, medical and financial service delivery is increasingly migrating to the Internet. 6

Historically, rural, inner city, minority, small business, and poor Americans have enjoyed less access to telecommunications services. Recently, these Americans have experienced a decrease in the availability of these services as costs have increased and service providers have sought to reduce expenses by relying on computer and web based service distribution. Further deferring advanced network and high-speed network deployment will exacerbate the disparity of access to not only the networks, but the services increasingly provided through the networks' use as well. 7 Given the inequitable distribution of the aforementioned services, implementation of a policy that exacerbates the disparities by deferring network access is unreasonable and untimely.

Under the new Commission's current "monitoring," continued deferral is highly likely. The Commission has no adequate method for determining the current state of deployment to all Americans. It has established no discernible baseline of what the current deployment actually is. Consequently it will be unable to determine whether deployment will be reasonable and timely in the future.

The Commission's Finding of "Reasonable and Timely" Deployment is Flawed

The Commission's Findings

The Commission concludes that deployment of advanced telecommunications capability is reasonable and timely. It finds that there is "continued and rapid growth in subscription to high-speed and advanced services on a nationwide basis which (sic) is indicative of the increased availability of advanced services." The Commission proposed to continue to monitor deployment to certain categories of consumers so that if deployment ceases to be reasonable and timely in the future, the Commission would recognize that development early. 8

The Zip Code Analysis

In order to answer the question of equitable deployment, the Commission analyzed zip codes using as its basic measure the existence of at least one high-speed subscriber per zip code. By using this data, the Commission surmised that it could "gain useful information into deployment and location of high-speed network infrastructure." It further surmised that this limited measurement of subscribership reflected availability, responsive service offerings, and affordable pricing. It concluded that the findings indicate where services are being made available. Based on its findings, the Commission speculated that "consumers in zip codes with no subscribers may require different solutions to bring them access than consumers in zip codes where last mile infrastructure exists but other barriers prevent access." 9

The Commission went on to speculate that the presence of one subscriber for cable modem or DSL indicated that other subscribers to the same system could obtain similar service. 10 However, it conceded that since zip code, cable service areas and wire center boundaries are not the same, the presence of a high-speed subscriber does not conclusively indicate the availability of similar service to other residents in the zip code. 11

The Commission's Methodology is Flawed The Definition of Broadband

Section 706 of the Telecommunications Act of 1996 requires the FCC to periodically ascertain whether the deployment of advanced capability is made available to all Americans in a reasonable and timely manner. 12 Section 706( c)( 1) of the Act defines broadband telecommunications capability as "high-speed, switched, broadband telecom-munications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology." 13

The FCC has clarified advanced telecommunications services by dividing broadband capability into two categories. Advanced services are defined as services and facilities with an upstream and downstream transmission speed of more than 200 kbps (kilobits per second). 14 High-speed services are defined as services with over 200 kbps capability in at least one direction. 15

The Commission recognized that its choice of speed designations "has major implications " for its analysis of deployment. Networks operating at the lower speeds are likely to be more widely deployed and hence available but are not compatible with high-speed applications such as video. Because many believe video and other high speed services are likely to be the killer applications that will lead consumers to adopt advanced telecommunications capability in great numbers, the FCC's decision to measure lower level deployment is misplaced. 16 The Commission would no doubt counter that the demand for high-speed applications has not yet surfaced in great measure 17 and as a result, the FCC is reluctant to impose massive build-out requirements for a network capability without a market. Such a concern may be mooted as recent data reported by Neilsen/ NetRatings confirms that broadband Internet usage has passed dial-up Internet usage for the first time. The Commission may still decide to err on the side of caution. Nevertheless, the Commission failed to adequately measure the availability of infrastructure capable of providing the advanced services that are likely to attract the subscribership the FCC asserts that it seeks to foster pursuant to congressional mandate. As such, it has not met its statutory responsibility.

The Zip Code Methodology

The Commission concedes that the presence of one subscriber does not indicate the presence of any others receiving service in a particular zip code. It acknowledges zip code boundaries do not necessarily overlap substantially with cable service areas or DSL wire centers. Moreover, the Commission does not even know who the one subscriber in the zip code actually is. It does not know whether the subscriber is a large or small business or a residential subscriber. Thus it cannot adequately state the extent, scope or beneficiary of deployment. Nevertheless, the Commission concludes that its limited subscribership sample is sufficient to justify a finding of sufficient availability, responsive service offerings, and affordable pricing.

Because it does not truly know the subscriber's characteristics, the Commission cannot even state for whom the finding of sufficient availability, responsive service offerings and affordable pricing applies. The Commission cannot with any degree of certainty state the income of the subscriber. It cannot state with any degree of accuracy how many other like situated subscribers exist in the zip code and whether the subscriber( s) in question are receiving services from the same network.

Nevertheless the Commission concludes that deployment is reason-able and timely. To do so, the Commission, despite relying on ques-tionable data, must find deployment is equitable or if inequitable, nevertheless reasonable and timely. Such a finding is not justified by current facts of deployment.

The Commission's Data is Insufficient to Justify Its Findings

Based on its data, the Commission reports that there is at least one customer for high-speed service in each of the 50 states and 78 percent of all zip codes in the country. And that 97 percent of the country's population lives in the 78 percent of the zip codes in which at least one customer/ subscriber of high-speed services exists. In addition, the Commission states that multiple providers of high-speed services reported having customers in 58 percent of the zip codes.

In a nation of 340 million people, 100 million households, and 33 million small businesses, the Commission finds that deployment is reasonable and timely based on the existence of a minimum of one subscriber per zip code reduced in some instances to one subscriber per state. The Commission is right to avoid any assertion that the data is statistically significant. But in doing so, it concedes that its findings possess little credibility for purposes of setting policy. Nevertheless, the Commission asserts that deployment is reasonable and timely.

The Commission states that the "data collection that required highly detailed reporting at fine geographic levels would have created an appreciable regulatory burden for the firms providing high speed service and a significant administrative burden for firms with national scope." The Commission then suggests that "state commissions and private institutions may be best positioned to collect highly detailed data in discrete geographic areas and among particular communities of the population." 18

The Commission's willingness to abdicate the responsibility to ascertain with any precision the extent of deployment, raises the question of how seriously it takes Congresses' requirement to monitor deployment to make certain that it is reasonable and timely. Moreover, relying on state and/ or private data that may be generated with a multiplicity of methodologies could render the data unreliable because of discrepancies in data collection and survey analysis. Further, to the extent such data is generated by private entities, it may ultimately be proprietary, and may not be readily available to the public in order to participate in meaningful policy development.

The Commission qualifies its presentation of data by saying that it is preliminary and descriptive and that FCC assertions as to the relationship between variables do not establish cause-and-effect, leading the Commission to "decline to draw conclusions about the statistical significance of [the] demographic variables." 19

The Commission goes on to acknowledge that reliance on marketplace forces may yield deployment that varies by demography at any given point in time. It maintains, however, that its reliance is consistent with Congress' requirement to promote advanced services deployment within a framework that relies significantly on market forces. The Commission then states that information relating to various demographic variables does not, by itself determine whether deployment is reasonable or timely. Ultimately, the Commission concludes that some amount of demographic variation, particularly if it is not persistent, may not be inconsistent with reasonable and timely deployment. The FCC concludes that it is appropriate that it continue to monitor demographic relationships in order to identify drivers of deployment in the event government or non-government action is warranted. 20

Later in its Report, the Commission states that the zip code data does not allow it to determine how many customers are subscribing to the high speed service or have access in a given zip code. 21 Nevertheless the FCC believes "zip code data provide a simple ... unique source of information about where high-speed services are being delivered and where high-speed capable last miles are deployed." 22 It is a mystery how the Commission could possibly determine where high-speed services are delivered and last miles are deployed. It doesn't know what types of customer/ subscribers, are in which neighborhoods, central offices or cable head ends. Nevertheless it insists deployment variations based on demography are appro-priate. And it does so despite the fact that the Commission doesn't know what the circumstances are. Based on the methodology employed and the resulting data, the FCC cannot possibly tell whether the variations that do exist are inequitable or persistent. The methodology returns data at such a macro level with so many data points unmeasured and unaccounted for, that the Commission has no way to determine and no mechanism for addressing inequitable deployment.

The Commission is making an assumption that zip codes ranked by median household income will necessarily yield data about the income of the high-speed subscriber when it has conceded that it cannot determine whether the subscriber is a business or a residential subscriber. So, it does not in truth know what the data actually show. And, it cannot possibly know what percentage of low-income and rural communities have access. 23

Current Deployment is Inequitable

In recent years, numerous groups have expressed concern over the inequitable deployment of advanced network services. Senator John McCain asked the FCC and NTIA to investigate whether current broadband deployment strategies might result in electronic redlining. 24 Concern has been raised about the lack of minority community access to advanced networks and services supplied via cable television. 25 Concern has been raised about the failure of long distance companies to deploy broadband capability to inner city and rural communities. 26 Even where redlining to minority communities was not found, lack of availability in inner city and rural communities was still prevalent. 27 And, the recent consensus of many experts is that disparities in broadband access between Americans remains wide with regard to income and population density and location. 28 As the GAO has noted, prior Commissions have acknowledged minorities, disabled, low income, inner city and rural Americans remain vulnerable to inadequate broadband access. 29 In its most recent report, the Commission again acknowledges that these same Americans remain vulnerable. 30 However, it concludes that disparities are to be expected when relying on marketplace initiated deployment of advanced telecommunications.

Commission Measurement Policies Obscure Inequities

Eschewing documented findings of disparities created by untimely deployment, the Commission instead relies on limited data generated by use of a questionable methodology to make major policy decisions about the adequacy of deployment. In so doing, the Commission ignores findings made by congress, industry and the public. And it turns a jaundiced eye towards continuing legitimate concerns over the adverse impact of electronic redlining. Its response is that it will continue to monitor the situation. Yet, one is left to ask how the Commission will accomplish its monitoring. By what standard will it determine deployment is unreasonable and untimely? How would it even know in any event, as the Commission's methodology obscures the inequity by failing to measure it? It has not actually defined reasonable and timely, nor has it established the actual or likely extent and speed of deployment to low income and rural communities such that the FCC could ascertain whether deployment ceases to be reasonable and recognize the development early.

Conclusion

The implementation of a laissez faire regulatory philosophy that is not disciplined by credible data and hence is not subject to meaningful review destroys public accountability as it exacerbates the disparities in access to critical resources experienced by many Americans. It is inherently undemocratic and contrary to the public's interest.

It is likely that the current Commission majority experiences a fundamental 31 unease with a rapid build-out of advanced network infrastructure with government involvement supplementing market forces. 32 However, an agency decision to change the prior policy of market place reliance tempered by government initiatives addressing market failures to one of sole reliance on purely market driven initiatives must be justified pursuant to the Administrative Procedure Act. 33 Such justification is particularly necessary where the policy being implemented has been deemed untenable by prior commissions, congress and many experts.

Endnotes

2. Rep. Ruben Hinojosa , All Students Need Equal Access to Technology, Roll Call, February 26, 2001; March 08, 2001 The House Committee On Energy and Commerce W. J. "Billy" Tauzin, Chairman Subcommittee on Subcommittee on Telecommunications and the Internet Hearing Technology and Education: A Review of Federal, State, and Private Sector Programs Mr. Hal Krisbergh Chairman and CEO WordGate Communications (Wish TV).

3. Gary Chapman The Cutting Edge: Focus on Technology; Digital Nation; Casting A Vote of Caution on Online Voting, Los Angeles Times, March 20, 2000, Part C; Page 3.

4. Jane Larson, Digital Divide: A Hurdle For Hispanic-Owned Businesses, The Arizona Republic, September 18, 1999, Pg. E1; Federal Document Clearing House Congressional Testimony, May 17, 2001, House Committee on Small Business "Economic Development in Rural America -Small Business Access to the Broadband" Prepared Remarks of Nancy Stark National Center for Small Communities.

5. "Streaming media will be a significant application for the Internet, especially as broadband deployments accelerate. For makers of systems, set-top boxes and other emerging products, support for or integration with streaming media will become increasingly important." Hank Hogan, Streaming Video Mainstream? Electronic News, December 4, 2000, Pg. 28. (Quoting Kevin Hause, an analyst with market research firm International Data Corp., based in Mountain View, Calif.)

6. Andrew Backover, Relative to The Future Gee-Whiz Technology Closer Than You Think. The Denver Post, November 29, 1999, Pg. E-01

7. Id

8. 3r Report, ¶ 89.

9. 3rd Report, ¶ 21.

10. 3rd Report, ¶ 22.

11. 3rd Report ¶ 22, note 54.

12. § (b) requires that the Commission "... regularly ..., initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) ... In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission's determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market."

13. 47 U. S. C. § 706 (1996).

14. 3rd Report, paragraph 9. The Commission's rationale for the 200 kbps designation is that the speed is faster than ISDN and allows enough bandwidth to provide e-mail and web browsing. And that the definition is consistent with §706( b) 's requirement of origination and reception. Id.

15. Service may have asymmetrical upstream and downstream paths as long as both paths provide speeds in excess of 200 kbps to the network demarcation point at the subscriber's premises. 3rd Report, ¶ 9.

16. 3rd Report, ¶12.

17. Jon Van, Broadband Dream Hits Snag; Most Americans Unwilling to Pay Premium for High-Speed Web Access, Chicago Tribune, November 12, 2001Pg. 1; ZONE: CN (High costs, few customers, technology glitches and an unsure regulatory environment are said to be behind decisions by long distance, cable and local exchange carrier firms to slow high speed deployment.)

18. 3rd Report, ¶ 26

19. In ¶ 31, footnote 78

20. 3rd Report, ¶ 33.

21. 3rd Report, ¶ 34.

22. 3rd Report, ¶ 34.

23. See Para. s 37-38.

24. Senator McCain has previously requested that the the FCC and the Commerce Department's National Telecommunications Infrastructure Administration study whether broadband technology deployment patterns could lead to "telecom redlining," in which companies avoid investing in low-income, rural areas. It is recognized that "[s]uch action would make it nearly impossible for residents in rural, low-income areas to ride the information superhighway." See, Mary Beth Regan, Internet Access Battle Reaches Congress; Sen. McCain Bill To Seek Study of High-Speed Web Use Patterns, Chattanooga Times / Chattanooga Free Press, April 14, 1999, Pg. C1.

25. "... minority communities have the highest cable penetration rate and watch television more than any other population, yet are frequently the last to receive broadband telecommunication facilities via cable systems. This is an industry-wide problem ...we allege redlining has occurred in communities served by MediaOne. Based on information available, data and research, and conversations with individuals and organizations, we have concluded that a disturbing pattern has emerged ...TAP believes that consistent with the Telecom Act, protections against redlining and discrimination must be enforced." Telecommunications Advocacy Project (TAP) Says to FCC: Deny AT& T and MediaOne Merger Or Mandate Nondiscriminatory Practices as Condition of License Transfer, PR Newswire, February 4, 2000. (Quoting TAP Executive Director, Khalil Munir.)

26. Long distance companies, which can provide advanced services, are more interested in providing high-profit services in urban areas, ignoring cus-tomers in suburbs, small towns and rural areas, he charged "These compa-nies are allowed to serve rural America, but don't have the local facilities. But I guarantee you, they will not build them. This is the telecommunica-tions version of 'redlining. '" See US West Head Lashes Out On The Developing Digital Divide, Communications Today, October 12, 1998. (Quoting US West President, Solomon Trujillo.)

27. See, Ronald Roach, Study Examines Whether Broadband Redlining Exists; Black Issues in Higher Education, January 3, 2002, Pg. 35. Reporting on a study of DSL and cable modem deployment by James E. Prieger, titled "The Supply Side of the Digital Divide: Is There Redlining in the Broadband Internet Access Market?." While Prieger, said he found little evidence of redlining based on income or on Black or Hispanic concentration, he concluded there was mixed evidence of redlining based on American Indian or Asian concentration. His study findings showed that inner-city or rural locations of residents decreased the probability that access to high-speed Internet was available. The study can be found the following address www. aei. brookings. org/ publications/ abstract. asp? pID= 186.

28. The overall consensus at the National Summit on Broadband Deployment ...was that ubiquitous, affordable advanced telecommunications services are still a ways off for many Americans. The gap between the "haves" and the "have-nots" remains wide, and it is based largely on location and cost. When it comes to high-speed Internet access in the United States, "density matters, income matters," said Federal Communications Commission economist Emily Hoffman. According to the latest FCC statistics, 98 percent of the most densely populated zip codes have broad-band availability, and 96 percent of the wealthiest zip codes also have broadband availability, Hoffman said. For the poorest and most rural zip codes, she added, those statistics reverse down to single digits. Rural Broadband Faces Big Challenges, Broadband Networking News, November 6, 2001.

29. In ...( a) report on the deployment of advanced telecommunications capability (released in August 2000), FCC identified certain categories of Americans who may have difficulty obtaining access to advanced services. These categories include low-income consumers, those living in sparsely populated areas, minority consumers, Native Americans, persons with disabilities, and those living in U. S. territories. In particular, FCC concluded that several barriers might hinder the ability of low-income, inner-city residents to obtain advanced services. Such barriers include the poor quality of the telecommunications plant or of the inside wiring in multiple-tenant buildings, the relatively high price of advanced services, the lower rates of computer ownership among inner-city residents, and the lack of marketing by providers of advanced services to low-income populations. FCC also found that for the majority of Americans who live in rural areas, lowest-cost access to advanced services was not readily available. Stanley J. Czerwinski, Telecommunications-Characteristics and Choices of Internet Users, GAO Reports, February 16, 2001, RPT-NUM-BER: GAO-01-345.

30. In the 3rd Report, the Commission acknowledged its prior conclusion that certain groups including "low-income consumers, those living in sparsely-populated areas, minority consumers, consumers living on tribal lands, persons with disabilities, and those living in the U. S. territories," were vulnerable to being bypassed by broadband deployment. 3rd Report, ¶ 3. In its 3rd Report, the Commission noted that its new data supported a conclusion that availability had improved but that monitoring was still necessary. 3rd Report, ¶ 101.

31. The current FCC position is consistent with the conservative position on the digital divide. Translated into the conservative lexicon, the divide became an opportunity to be effectuated via an unleashed free market. Then-existing Clinton Administra-tion programs to bridge the divide were painted as suspect and superfluous. Early during the presidential campaign, republican party rhetoric referred to the digital divide as a "digital opportunity ... to ensure that those in underserved communities gain access to new technology and the incredible developments of the Internet age." The means for bridging the divide would come from "unleashing the resources of the free market, [and insuring] a deregulated environment, along with an assault on excise and access taxes." See Robert MacMillan, GOP Tax Cuts Will Ease Digital Divide, Newsbytes, April 25, 2000 (quot-ing rep. J. C. Watts (R-Okla.); Free market policies were also touted as critical to eliminating the technology gap between urban and rural markets. Ensuring "that the marketplace that has spawned a breathtaking array of innovation and creativity remains unfettered," was viewed as the principal method for bridging the divide. Republicans promised to work to create tax and regulatory relief as well as emphasize an education component encouraging companies to donate computers to schools. See Melanie Fonder, Watts Leads GOP On Hi-Tech Silicon Valley Tour, The Hill, April 26, 2000, Pg. 24; and Heather Forsgren Weaver, Will Wireless Arrive in Time to Help Rural America? Radio Comm. Report, May 8, 2000, Pg. 10.

In August of 2000, presidential candidate Bush, "a self-proclaimed compassionate conservative attempting to draw more folks into the Republican tent," was believed to be "in no position to oppose bridging the Digital Divide." Jeffrey Silva, High-Tech Positions Difficult to Distinguish, Radio Comm. Report, August 21, 2000, Pg. 1. Indeed, on another occasion in September of 2000, candidate Bush was viewed as generally in favor of "a free-market approach, [but was believed to have] ... offered a plan to extend Internet and telecommunication services to underserved areas. Bush and Gore: Issue by Issue: An Update, The National Journal, September 30, 2000, Pg. 3056. Nevertheless, by October of 2000, presidential candidate George Bush opposed federal programs to close the digital divide because he was worried about "government funding and gov-ernment programs that are haphazard and will be obsolete before they're even funded." Patrick Neighty, Inside the Candidates: The Positions and Policies of the Presidential Contenders; America's Network, October 1, 2000, Pg. 36.

More recently, the Bush Administration has sought to deny funding to Department of Commerce and Department of Education programs that have been instrumental in increasing minority, rural and low-income access to the Internet. The actions have met with significant criticism from the Benton Foundation. "The Benton Foundation said the Bush Administration was abandoning a national strategy to bridge the digital divide. Benton said the White House stripped more than 100 million in public investments for community technology grants and information technology (IT) training programs from its 2003 budget. `The budget's clear message is that the digital divide is no longer a concern for the government -- the problem will somehow solve itself, ' the Benton Foundation said. The Administration tried to justify the budget choices in its report released last week titled A Nation Online, the latest nationwide study by the Commerce Dept. 's NTIA. The report said low-income individuals and minorities were going online at a faster rate than more affluent or white Americans. But Benton disputed the report, saying its own analysis of data showed that gaps in technology access for citizens of different educational, income, racial and geographical backgrounds weren't abating. "With the nation in an economic slump, technology has been a proven catalyst in increasing productivity and economic growth, especially in rural and underserved communities," Benton Foundation Senior Dir. Tony Wilhelm said. Industry Notes, Washington Internet Daily, February 12, 2002.

32. "I think the term [digital divide] sometimes is dangerous in the sense that it suggests that the minute a new and innovative technology is introduced in the market, there is a divide unless it is equitably distributed among every part of the society, and that is just an unreal understanding of an American capitalistic system. I think there is a Mercedes divide. I would like to have one, but I can't afford one. I'm not meaning to be completely flip about this. I think it's an important social issue, but it shouldn't be used to justify the notion of, essentially, the socialization of deployment of the infrastructure." Alan Pearce, Closing the Gap: Smart Taxation Could be Key in Solving the Problem of the Digital Divide, America's Network, Pg. 29, quoting Commission Chairman, Michael Powell.

33. "A finding without substantial evidence to support it -an arbitrary or capricious finding -does violence to the law." Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 277 (1933). The Commission's findings should be examined under the Administrative Procedures Act to determine if the findings are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or whether its findings failed to meet statutory, procedural, or constitutional requirements. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 413-14, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); see also <= 33> 5 U. S. C. @ 706( 2)( A)-( D). The FCC's action may be arbitrary and capricious if "it has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Brower et al v. Evans, 257 F. 3rd 1058, 1101 (2000) citing Southwest Ctr. for Biological Diversity v. U. S. Forest Serv., 100 F. 3d 1443, 1448 (9th Cir. 1996). Also see City of Brookings Municipal Telephone Company, et al., v. Federal Communications Commission 822 F. 2d 1153 (1987).

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