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That many markets feature few providers offering service
at 25 Mbps or above is hardly surprising. In a competitive
world of rapidly improving technology, it’s unreasonable to
expect that all firms will simultaneously launch the
breakthrough services everywhere, especially in a context in
which more than 70% of the potential customers decline to
use the latest, priciest service.
The Commission established the 25 Mbps standard in its
2015 Broadband Report ¶ 45.
Its explanations seem
superficial at best. For example, it relies on the marketing
materials of broadband providers touting the availability and
benefits of speeds at or greater than 25 Mbps. Id. ¶ 28.
Perhaps the authors of the Order have never had the
experience of a salesperson trying to sell something more
expensive than the buyer inquired about—and, not
coincidentally, more lucrative for the salesperson. The
Commission also justifies the standard by arguing that 10
Mbps would be insufficient to “participate in an online class,
download files, and stream a movie at the same time” and to
“[v]iew 2 [high-definition] videos.” Id. ¶ 39. This is like
setting a standard for cars that requires space for seven
passengers. The data seem to suggest that many American
families are unwilling to pay the extra to be sure that all
members can have continuous, simultaneous, separate access
to high-speed connectivity (perhaps some of them read?
engage in conversation?). The fact that the Commission
strains so much to justify its arbitrary criterion shows how out
of line with reality such a criterion is. The weakness of the
Commission’s reasoning suggests that its main purpose in
setting the “standard” may simply be to make it appear that
millions of Americans are at the mercy of only one supplier,
or at best two, for critically needed access to the modern
world. All without bothering to conduct an economic
analysis!
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